Omar Bennett
The First Amendment to the US Constitution, ratified on December 15, 1791, protects the freedom of speech, religion, and the press, as well as the right to assemble and petition the government. While the First Amendment guarantees free speech, it does not protect speech that incites lawlessness or violence, defamation, obscenity, or interpersonal threats. The interpretation of free speech has evolved to include modern forms of communication such as the internet and video games. Hate speech, while offensive and hateful, is generally protected under the First Amendment, as the government's role is to encourage a broad spectrum of ideas and opinions, even if they are unpopular or disagreeable.
| Characteristics | Values |
|---|---|
| Freedom of speech | Protected even if the ideas are illogical, offensive, immoral, or hateful |
| Does not protect speech that incites people to break the law | |
| Does not protect commercial advertising, defamation, obscenity, or interpersonal threats to life and limb | |
| Freedom of religion | Protects the free expression of faith for all Americans |
| Freedom of the press | Protects more recent forms of communication, including radio, film, television, video games, and the internet |
| Right to assembly | Extends freedom of speech to groups |
| Right to petition | Allows people to petition the government for a redress of grievances |
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What You'll Learn
Freedom of religion
The First Amendment to the U.S. Constitution, ratified on December 15, 1791, is commonly recognized for its protection of freedom of speech, religion, and the press, as well as the right to assemble and petition the government. The First Amendment states:
> "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."
The First Amendment protects the free expression of faith for all Americans, regardless of their religious background. The freedom of religion was a pivotal tenet of the American Revolution, championed by James Madison, the lead author of the First Amendment. The Establishment Clause of the First Amendment prohibits the government from "establishing" a religion, which historically meant preventing state-sponsored churches like the Church of England. Today, the definition of "establishment of religion" is less clear, and it is often evaluated using the three-part test established in Lemon v. Kurtzman (1971).
The First Amendment also includes the Free Exercise Clause, which protects the right to freely practice one's religion. However, this right is not absolute, and there have been debates over whether individuals or groups can be exempt from complying with policies that conflict with their religious beliefs. Supreme Court decisions on this matter have gone back and forth, and it remains a complex issue.
While the First Amendment protects freedom of speech, there are certain limitations. Speech that incites violence or lawlessness is not protected, as clarified in the Supreme Court case Brandenburg v. Ohio. Additionally, universities and public forums may restrict speech that constitutes defamation, genuine threats, harassment, or unlawful action, as long as it does not infringe on the broader right to freedom of speech.
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Freedom of assembly
The First Amendment to the US Constitution, ratified on December 15, 1791, is commonly recognized for its protection of freedom of speech, religion, the press, and the right to make complaints and requests to the government. The text of the amendment states:
> "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."
The freedom of assembly is the fourth inalienable right enumerated in the First Amendment, which means public universities are obligated to ensure that it is protected. The right to assemble is most commonly manifested in the form of protest, which has a long history in the US. Political party advocacy, abolition of slavery, women's suffrage, labor movements, and civil rights organizations have all used the right to assemble in the course of their public actions.
The Supreme Court has held that people may assemble on public property, including traditional "public forums" such as parks, as well as public streets and sidewalks to express themselves. They can petition their government through assembly or through written petitions. The First Amendment protects peaceful, not violent, assembly. The adverb "peaceably" is key to understanding freedom of assembly, as government officials may not arrest those who assemble peacefully because they disagree with the protestors' message or want to shut down public discourse.
The Supreme Court has ruled that reasonable time, place, and manner restrictions on traditional public forum assemblies are constitutional under the First Amendment if they are content-neutral and narrowly tailored to serve the government's legitimate interests. For example, in 2003, the high court allowed curbs on assembly in Virginia v. Hicks, saying that the city of Richmond could make the streets and sidewalks of a housing project off-limits to unauthorized people to curb drugs and other crime in the area.
The First Amendment has also been interpreted to protect even uncomfortable protests, including those involving hate speech. For example, in National Socialist Party of America v. Village of Skokie (1977), the Supreme Court upheld the rights of a neo-Nazi group to march through Skokie, Illinois, a suburb near Chicago that was home to many Holocaust survivors. Similarly, in Forsyth County v. Nationalist Movement (1992), the Supreme Court struck down an ordinance that allowed officials to charge higher permit fees to groups whose marches would require more police protection.
While the First Amendment protects offensive and hateful speech, illegal conduct motivated by hate for a particular protected group may be regulated by local, state, or federal law, and/or university policies, sometimes identified as "hate crimes."
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Hate speech
In the United States, the First Amendment protects freedom of speech, and courts have ruled that restrictions on hate speech would conflict with this protection. As such, most hate speech is protected under the First Amendment and cannot be lawfully censored, punished, or burdened by the government. This includes public universities, which are bound by the First Amendment and must adhere to these rulings.
However, the First Amendment does not protect certain types of speech. Speech that incites imminent lawless action or violence is not protected. For speech to lose its protection under the First Amendment, it must be directed at inciting or producing imminent lawless action and be likely to do so. This is known as the "fighting words" doctrine, which applies to face-to-face encounters involving physical threats or intimidation. Additionally, speech that constitutes harassment, defamation, or a genuine threat may also be prohibited and punished.
While hate speech is generally protected, it is important to note that illegal conduct motivated by hate for a particular group may be regulated by local, state, or federal laws, often identified as "hate crimes."
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Commercial advertising
Historically, commercial speech was not viewed as protected under the First Amendment and was subject to significant regulation to protect consumers from fraud and misleading information. However, beginning in the 1970s, the Supreme Court gradually recognised commercial speech as deserving of some First Amendment protection. In Bigelow v. Virginia (1975), the Supreme Court ruled that an individual had the right to advertise abortion services in a state where the procedure was illegal. Justice Harry A. Blackmun asserted that the existence of commercial activity does not justify narrowing the protection of expression guaranteed by the First Amendment.
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court extended First Amendment protection to commercial speech, striking down a state law prohibiting pharmacies from advertising drug prices. Justice Blackmun emphasised that the First Amendment protects not only the right of the speaker to speak but also the right of the listener to receive information. However, Blackmun also noted that commercial speech is still subject to government regulation if it is false, misleading, or fraudulent.
To determine the constitutionality of governmental regulation of commercial speech, courts employ a four-part test established in Central Hudson v. Public Service Commission. Firstly, the commercial speech must concern lawful activity and must not be misleading. Secondly, the government must have a substantial interest in regulating the speech. Thirdly, the regulation must directly advance the governmental interest. Lastly, the regulation must not be more extensive than necessary to achieve the governmental interest.
While commercial advertising is generally protected under the First Amendment, certain types of content, such as false or deceptive advertising, offensive advertising, and prohibitions on advertising in specific forums or for certain products, may be subject to regulatory constraints.
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Right to protest
The First Amendment protects the right to assemble and express views through protest. This includes the right to participate in boycotts for ideological reasons and to openly film government officials in public places. Protesters are also permitted to use a table or news rack to display materials, subject to the usual time, place, and manner rules.
The right to protest is strongest in "traditional public forums", such as streets, sidewalks, and parks. Protest is also permitted on other public property, such as plazas in front of government buildings, as long as access is not blocked. Protesters do not need a permit to march in the streets or on sidewalks, as long as they do not obstruct traffic. Marches or parades that require street closures or the use of sound equipment, for example, may require permits.
The First Amendment does not protect speech that incites people to break the law or commit acts of violence. The government may restrict speech that falsely defames an individual, constitutes a genuine threat or harassment, or is intended and likely to provoke imminent unlawful action.
Police must treat protesters and counterprotesters equally, allowing them to be within sight and sound of one another. They may, however, impose certain restrictions on the exercise of speech rights, such as limiting access to certain spaces or requiring permits for certain events. These restrictions must be reasonably related to legitimate goals, such as reducing security risks, and must not prevent more expression than is necessary to achieve those goals.
Protesters have the right to photograph anything in plain view, including federal buildings and the police, when lawfully present in any public space. On private property, the owner may set rules related to photography and speech.
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Frequently asked questions
The First Amendment, ratified on December 15, 1791, protects the freedom of speech, religion, the press, and the right to assemble and petition the government.
The First Amendment protects speech even when the ideas put forth are illogical, offensive, immoral, or hateful. However, it does not protect speech that incites people to break the law, including acts of violence.
The First Amendment does not protect speech that constitutes defamation, obscenity, interpersonal threats, or commercial advertising. Private organizations, such as businesses, colleges, and religious groups, are also not bound by the First Amendment.
