EXPLAINING THE FIRST AMENDMENT

US Constitution

Undisputed Legal 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – The First Amendment to the U.S. Constitution.

The first amendment is one of the most important tenets of the United States Constitution. The First Amendment (Amendment I) to the United States Constitution prevents the government from adopting legislation that would abrogate the free [A.] establishment or exercise of religion, [B.] the freedom of speech, the freedom of the press, [C.] the freedom of assembly, or the right to [D.]  petition the government for a redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

First Amendment freedoms are guaranteed to every individual in the United States and are a universal right guaranteed to the people. Furthermore, the First Amendment can also prevent the government from restricting information that an individual can access, providing a right to receive information. 

[1.0] FREEDOM OF SPEECH

Freedom of speech seems to form the core of Constitutional freedoms.  When the average American thinks of the First Amendment, free speech comes to mind and has to gather misconceptions regarding its scope.  But what really is freedom of speech? Can speech be restricted, and if so, when?

At its core, free speech is the free and public expression of one’s opinions without fear of censorship, interference, or restraint by the government. 

The Supreme Court in Chicago Police dept v Mosley said:

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. […] To permit our politics and culture to continue building and assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”[

Unprotected speech under the First Amendment includes the following: 

  1. Obscenity:  Obscene speech, even if it does not do any actual harm, is considered to be illegal. However, the determinant of what is considered ‘obscene’ is a gray area and must be deliberated by an impartial adjudicating body not to undercut freedom of speech. This is because determining what is obscene is a highly subjective issue, dependent on the particular views of all individuals involved. 
  2. Fighting words: Fighting words, or words deliberately meant to inflict injury, cannot be protected by freedom of speech. Consequently, they are punishable by law. However, 

For this speech to be unprotected by the First Amendment, the speech must be a threat that is an immediate breach of peace. Threatening to murder an individual comes under the context of fighting words. 

  1. Defamation (including libel and slander): While defamation is an exception to freedom of speech, truth is an absolute defense to libel claims. The core evidence in defamation cases is the requirement of a statement’s falsity, without which the case cannot subsist. In fact, even substantial truth as a doctrine can be held to be sufficient to dismiss a defamation claim, depending on the jurisdiction.
  2. Child pornography: Any content that is explicit in its portrayal of children is against the first amendment. Furthermore, it does not have to be obscene to be out of the First Amendment limits, and there is no constitutional protection for possession, even in the individual’s home. 
  3. Perjury: Perjury is perpetrated whenever a person knowingly” bears witness to or panders to claims that they do not believe to be true. Perjured information obtained cannot be considered to fall within the First Amendment’s confines insofar as it undermines the ability of courts to obtain truthful testimony and effectively administer justice.
  4. Incitement to imminent lawless action: Imminent lawless action is a standard established by Brandenberg v Ohio. Freedom of speech is not applicable when there is a violation of the upholding of the imminent and likely law. To determine the same, the case law states that it is necessary that  [A.] the advocacy is directed to inciting or producing imminent lawless action, and [B.] is likely to incite or produce such action

Incitement to commit suicide is also not protected under the First Amendment. 

  1. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished.
  2. Plagiarism of copyrighted material: A large part of permissible restrictions on free speech is based on intellectual property rights, infringement of which cannot class a First Amendment charge.

The First Amendment protects not only the act of speaking but also the affirmative act of not speaking. The right to be silent extends to business enterprises, even when the compelled speech relates to commercial activity. For the government to restrict speech other than child pornography, obscenity, and fighting words, a “strict scrutiny” test/ analysis must be applied by the courts. Consequently, there needs to be a ‘compelling government interest’ for the restriction to be levied, and it must be done in the ‘least restrictive means to do the same and fulfill the interests of the government. 

[2.0] FREEDOM OF PRESS

Freedom of the press refers to the constitutional guarantee for all media to report the news to circulate opinion without government censorship. This right was considered “one of the great bulwarks of liberty” by the Founding Fathers of the United States. However, it isn’t easy to ascertain the same scope, especially with the emergence of new media. 

An absence of statutory and administrative control on disseminating information, ideas, knowledge, and thoughts characterize the press’s freedom. Freedom of the press means freedom of [A.] access to all sources of information, [B.] publication, and [C.] circulation. Peripherally, this would also include the freedom of inquiry, freedom of thought, and freedom to teach. 

Furthermore, it is essential for a checks and balances system in democracy for the press to criticize the government. 

However, the level of protection concerning free speech and the free press given by the First Amendment is not limitless. The landmark case of New York Times Co. v. Sullivan provides for the same, wherein it laid down the ‘actual malice’ test for libel, after which the press could be held liable for the statements made by them regardless of their freedoms. 

[3.0] FREEDOM OF RELIGION 

The First Amendment introduced bold new ideas to the world for freedoms, among which were the ideals that there could not be a state religion in public and that individuals could not have restrictions on religious practices.  Consequently, freedom of religion is protected under the [A.] Establishment Clause and [B.] the Free Exercise clauses of the Constitution in a two-pronged makeup for religious liberty. Essentially, Establishment cases in Constitutional law almost exclusively deal will the ban on Congress becoming too entangled with any religion, is expressly barred from doing so. The Establishment Clause provides for a “wall of separation” between Church and State, forbidding the passing of state, local, and federal laws that pertain to the  “establishment of a religion” in its purpose. The concept of denominational neutrality thus takes the forefront and drives the Establishment Clause.  

Laid down consequently in the Lemon test, then it was decided that for legislation to be considered valid in the eyes of the Establishment Clause if it is meant to help religion, it must fulfill conditions to the same, namely [A.] the primary purpose of the assistance must be secular, [B.]  the assistance must neither promote nor inhibit religion, and [C.] there should be no excessive entanglement between church and state

Free Exercise cases refer to the individual right of any American to practice their faith. The overlap between the clauses can be significant; However, the State cannot create a law to establish a religion or interfere with religious beliefs and opinions, regulating religious practices.  This renders the situation wherein the Free Exercise Clause allows the individual right to practice their faith without interference in religious belief. However, it might exercise limits on actual religious practices. Freedom of religion does not provide an impetus to perform actions against social norms or violate society’s good order.  

The tests for the same were that religious practice should not run afoul of a “public morals” or a “compelling” governmental interest. However, to identify whether the government is placing an undue burden onto the individual, it must be put to the test as to whether [A.] the person has a claim involving a sincere religious belief, and [B.] the government action places a substantial burden on the person’s ability to act on that belief.

[4.0] FREEDOM OF ASSEMBLY

The right to assembly is the right of the people to commune to collectively promote, pursue, and defend their collective or shared ideas. Rather than a subset of free speech and press, the right of peaceable assembly is necessary since it prevents the proscription of peaceful political action and upholds the individuals participating in the same rather than dismissing them as criminals. Consequently, gatherings in peaceful public protest – in marches, rallies, and other assemblies – is another core freedom guaranteed by the First Amendment. 

Like other rights, the right to assemble is not absolute. Restrictions may be imposed on the assembly regarding the time, place, and manner of execution within constitutional bounds. Still, the government is explicitly barred from prohibiting the assembly from happening altogether. Restrictions imposed by the government as justified insofar as they are judged without actually taking into account the content of the regulated speech  are narrowly tailored to “serve a significant governmental interest, and  also leave open ample alternative channels for communication of the information.” However, the restrictions on time, place, and manner usually occur by way of obtaining specific permits in advance to conduct the event, especially if the assemblies coincide with other major public events

Information provided about the assembly’s organizer and how it is likely to be conducted can also be asked without incurring the First Amendment. U.S.  courts permit regulations and ordinances requiring assembly organizers to obtain permits, licenses, or other forms of permission from the state or city before assembly.

It must be recollected that the exception to the First Amendment for the clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order is provided. Furthermore, the State is allowed to pass a statute that prevents assembly for the commission of illegal activities by the gatherers.  

[5.0] FREEDOM OF PETITION

The Petition Clause protects the right “to petition the government for a redress of grievances.” However, the right has grown through constitutional jurisprudence since it does not merely provide for the righting of a wrong but also provides a means to demand the government use its powers to better the interests of the public on politically contentious matters in a way that the general public is benefitted.  

It is easy enough to overlook the petition right. However, the nature of the petition freedom means that the people are guaranteed a way to demand relief be provided for injustice by way of litigation or redressive governmental action. Like the right of assembly, it allows for individuals to band together to demand change from the government. 

While effective change cannot be guaranteed, and since the importance of the petition is highly subjective in its ambit, it allows for the understanding of what matters are highlighted in the public interest and harnessing voting power in a manner to further the benefits for the public. The government, amongst the petitions received, is consequently empowered to resolve issues that might have been overlooked, understand the stance of the public on the policies that it might have formed as well, as ensure the above-board behavior of the government itself, allowing the voice of the people to be heard, 

Petitioning has evolved even in the mode of the term, encompassing every non-violent and legal manner of depicting the public’s opinion of government action, regardless of whether it is judicial, executive, or legislative. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests, and picketing are all public diction issues, grievances, and push-policies created to motivate government action. This is why the other First Amendment Rights are likely to overlap with the functioning of the right to petition. 

The First Amendment Is only applicable to government activity. It is also the only federal intervention that will tackle the first amendment’s usage and its reference to States through the 14th Constitutional amendment. The Bill of Rights safeguards individual autonomy from government official conduct. That is recognized as the doctrine of state action. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

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Sources

1. The words of the First Amendment itself establish six rights: (1] the right to be free from the governmental establishment of religion(the “Establishment Clause”),(2) the right to be free from governmental interference with the practice of religion(the“free exercise Clause”),(3) the right to free speech, (4) the right to freedom of the press, (5) the right to assemble peacefully (which includes the right to associate freely with whomever one chooses), and (6) the right to petition the government for a redress of grievances.

2. Miller v. California (1973). Under the Miller test, a work is obscene if:

(a) … ‘the average person, applying contemporary community standards would find the work, as a whole, appeals to the prurient interest … (b) … the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) … the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.]

3. Ingredients for Defamation: 

  1. Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
  2. That the charge must be false;
  3. That the charge must be articulated to a third person, verbally or in writing;
  4. That the words are not subject to legal protection, such as those uttered in Congress; and
  5. That the charge must be motivated by malice.

4. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)

5. In Leathers v. Medlock (1991), the Supreme Court found that states may treat different types of media differently

6. New York Times Co. v. Sullivan, 376 U.S. 254 (1964): it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false, defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice,” meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

7. Hustler Magazine v. Falwell (1988)

8. Reynolds v. the United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which violated social duties or subversive of good order.”

9. Court in Lemon v. Kurtzman, 403 U.S. 602 (1971

10. Gillette v. United States (1970),

11. Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)

12. Employment Division v. Smith (1990),

13. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969)

14. Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2002)

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