Simone Lawson
The First Amendment to the United States Constitution, which was adopted on December 15, 1791, prevents Congress from making laws that infringe on freedom of speech. The Amendment states that Congress shall make no law...abridging the freedom of speech. The Supreme Court of the United States has characterized the right to free speech as a fundamental personal liberty, essential for the foundation of a free government. The exact boundaries of what constitutes protected speech have been a subject of debate, with the Supreme Court often struggling to define its limits. The First Amendment also includes the freedom of the press, the freedom of assembly, and the right to petition the government.
| Characteristics | Values |
|---|---|
| Date of Proposal | September 25, 1789 |
| Date of Ratification | December 15, 1791 |
| Amendment Number | 1st |
| Type of Amendment | One of the ten amendments that constitute the Bill of Rights |
| Freedom of Speech | Congress shall make no law abridging the freedom of speech |
| Freedom of Religion | Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof |
| Freedom of the Press | Congress shall make no law abridging the freedom of the press |
| Freedom of Assembly | Congress shall make no law abridging the right of the people to peaceably assemble |
| Right to Petition | Congress shall make no law abridging the right of the people to petition the government for a redress of grievances |
| Right to Privacy | The right to be free from governmental intrusions into one's privacy and control of one's thoughts |
| Right to Receive Information | The right to receive information and ideas, regardless of their social worth |
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What You'll Learn
Freedom of speech and freedom of the press
The First Amendment of the US Constitution states that "Congress shall make no law...abridging the freedom of speech, or of the press". This amendment has been interpreted by the Supreme Court to cover not only talking and writing but also broadcasting, using the internet, and other forms of expression, such as displaying flags, burning flags, wearing armbands, and burning crosses.
The freedom of speech also includes the right not to speak, as in the case of West Virginia Board of Education v. Barnette, where students refused to salute the flag. The Supreme Court has also ruled that students do not lose their constitutional rights at the schoolhouse gate, such as the right to wear black armbands to school to protest a war.
The freedom of the press has been a topic of debate, with some arguing that the institutional press should be entitled to greater freedom from government regulation than non-press groups or individuals. However, several court holdings have concluded that the press clause does not give the press the power to compel the government to furnish information that is not available to the general public. While the press is generally subject to the same laws as other members of the public, its role in disseminating news and information means that it is entitled to governmental "sensitivity".
The Supreme Court has held that restrictions on speech because of its content, when the government targets the speaker's message, generally violate the First Amendment. For example, laws prohibiting people from criticizing a war or advocating high taxes are unconstitutional content-based restrictions. These laws are problematic because they distort public debate and contradict the principle of self-governance, which states that the government cannot be trusted to decide what ideas or information the people should hear.
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Freedom of religion
The text of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". This means that Congress cannot pass laws that favour or hinder a particular religion, or that restrict the free practice of religion. The Fourteenth Amendment, adopted in 1868, further extended religious freedom by preventing individual states from enacting laws that would advance or inhibit any one religion.
The Supreme Court has ruled on several cases concerning religious freedom, including the display of religious symbols in government buildings and schools, and prayer in public schools. In Lemon v. Kurtzman (1971), the Court created the "Lemon Test", a three-part test to determine whether a government act or policy unconstitutionally promotes religion. This test states that a policy must not foster excessive government entanglement with religion, not have a primary effect of advancing or inhibiting religion, and not result in excessive government entanglement with religion.
While the First Amendment enforces the separation of church and state, it does not exclude religion from public life. Religion has played a significant role in American politics, both historically and in the present day. The protection of religious freedom in the United States has evolved over time, with figures like Thomas Jefferson and James Madison advocating for the separation of church and state and the protection of religious minorities.
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Freedom of assembly
The right to assemble peaceably is a fundamental freedom guaranteed by the United States Constitution. This right is enshrined in the First Amendment, which states that "Congress shall make no law...abridging...the right of the people peaceably to assemble". The right of peaceable assembly is considered equally fundamental to the freedoms of speech and the press, and it protects the ability of citizens to hold meetings for peaceful political action.
The historical basis for the right to peaceable assembly can be traced back to the early days of the United States. The Supreme Court has affirmed that this right is, and always has been, an attribute of citizenship under a free government. In the 1830s, the right of petition, closely linked to the right of assembly, gained prominence as petitions against slavery in the District of Columbia flooded Congress. This led to the House adopting a rule in 1840 stating that no petition praying for the abolition of slavery would be accepted.
The right to assemble peaceably has been the subject of several court cases over the years, with the Supreme Court interpreting it as a distinct interest in the holding of meetings for peaceable political action. One notable case is United States v. Cruikshank (1876), which involved charges against certain citizens for depriving others of their right to assemble peaceably for a lawful purpose. This case established the importance of the right to assemble and petition the government, stating that it is an attribute of national citizenship and guaranteed by the United States.
The Noerr-Pennington doctrine, arising from lobbying-related cases, provides limited antitrust immunity for constitutionally protected lobbying activity, further emphasising the right to assemble and engage in political action. The freedom to assemble peaceably is an essential aspect of the liberties enjoyed by citizens in a democratic society, and it continues to be protected and upheld by the courts.
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Right to petition the government
The right to petition the government is a fundamental aspect of the First Amendment to the United States Constitution. This right ensures that citizens can assemble peacefully and petition their government to address their grievances. While often overlooked, this right holds significant importance, as many other civil liberties can only be enforced against the government by exercising this basic freedom.
The right to petition extends to all branches of the government, including the legislative, executive, and judicial branches. It allows citizens to approach administrative agencies, courts, and other government forums to seek resolution for their legal disputes. This right was first significantly exercised to advocate for the end of slavery, with Congress receiving well over a thousand petitions signed by approximately 130,000 citizens.
The scope of the right to petition has evolved since the Constitution was written. Initially, it was primarily associated with demands for "a redress of grievances." However, it has expanded to encompass demands for the government to act in the interest and prosperity of petitioners and to address politically contentious matters. This expansion is reflected in court cases such as McDonald v. Smith, where the Court recognised that the right to petition does not provide absolute immunity from libel, even in the context of a petition to the government.
The right to petition includes the legal right to sue the government and access the court system for remedies. While some consider lobbying to be a form of petitioning, this interpretation is disputed. The view that the government is required to listen to or respond to members of the public has been rejected by the United States Supreme Court, highlighting the limitations of this right.
In conclusion, the right to petition the government, as outlined in the First Amendment, empowers citizens to assemble peacefully and seek resolution for their grievances. This right has expanded beyond its initial scope and plays a crucial role in civil liberties, allowing individuals to engage with various branches of the government and seek legal redress.
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Right to not speak
The First Amendment of the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political, or religious purposes, as well as the right to protest the government. The First Amendment states that "Congress shall make no law...abridging freedom of speech."
The right to not speak, or negative speech right, is a fundamental principle of freedom of speech. This principle protects both the right to speak freely and the right to refrain from speaking altogether. The U.S. Supreme Court has upheld this principle in various contexts, including in the case of West Virginia Board of Education v. Barnette (1943), where the Court recognized the right of students to refrain from saluting the flag. The Court has also protected the freedom of students to wear black armbands to school to protest a war, stating that "students do not shed their constitutional rights at the schoolhouse gate."
Compelled speech has long been a complex issue for courts and legal commentators. When an individual is compelled to speak, their autonomy is compromised as they can no longer freely choose what to say and what to omit. The Supreme Court has addressed compelled speech in cases such as NIFLA v. Becerra (2018), where the Court invalidated the FACT Act as it burdened the First Amendment interests of crisis pregnancy clinics by altering their expression.
While the right to not speak is protected, it is not absolute. For instance, universities may regulate the time, place, and manner of speech to ensure it does not disrupt their ordinary activities. Additionally, speech that violates the law, such as defamation, genuine threats, harassment, or incitement to imminent unlawful action, may be restricted by universities and the government.
In conclusion, the right to not speak is an essential aspect of freedom of speech protected by the First Amendment. The Supreme Court has upheld this right in various contexts, recognizing that compelled speech infringes on an individual's autonomy to choose what to express. However, there are limitations to this right, and certain types of speech that violate legal or institutional restrictions may be legitimately restricted.
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Frequently asked questions
Yes, the First Amendment to the United States Constitution, which was adopted on December 15, 1791, prevents Congress from making laws that abridge the freedom of speech.
Freedom of speech protects the right to express information, ideas, and opinions free of government restrictions based on content. The Supreme Court of the United States has characterized the right to free speech as a fundamental personal liberty.
The right to not salute the flag, as ruled in West Virginia Board of Education v. Barnette (1943), and the right of students to wear black armbands to school to protest a war, as ruled in Tinker v. Des Moines (1969), are both examples of freedom of speech.
While the First Amendment protects freedom of speech, it does not protect all forms of speech equally. For example, the Supreme Court has ruled that obscene speech at a school-sponsored event is not protected (Bethel School District #43 v. Fraser, 1986). Additionally, peripheral rights, such as the right to privacy, may be considered when determining the limits of free speech.
The interpretation of freedom of speech has evolved since the late 1790s. Initially, the First Amendment applied only to laws enacted by Congress and was interpreted more narrowly than it is today. The Supreme Court has also clarified the interplay between the establishment clause and the free exercise clause, noting that they sometimes compete with each other.
