Constitutional Amendments: The First Necessary Changes

The First Amendment to the US Constitution is widely considered to be the most important part of the Bill of Rights. It protects the fundamental rights of conscience, including freedom of religion, speech, press, assembly, and petition. The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the government from establishing a religion, while the Free Exercise Clause protects citizens' right to practice their religion as they please, as long as it does not conflict with public morals or a compelling government interest. The First Amendment also guarantees the right to gather in peaceful public protest and protects against government limits on freedom of expression.

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Freedom of religion

The First Amendment to the United States Constitution includes two provisions concerning freedom of religion: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause prohibits the government from establishing an official religion. The precise definition of "establishment" is unclear, but historically it meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an "establishment of religion" is often governed by the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman (1971). Under the "Lemon" test, the government can assist religion only if:

• The primary purpose of the assistance is secular;
• The assistance must neither promote nor inhibit religion;
• There is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens' right to practise their religion so long as it does not conflict with public morals or a "compelling" governmental interest. This means that individuals are free to worship and practise their religion without interference from the government.

One notable case related to freedom of religion in schools is Engel v. Vitale, which deals with the Establishment Clause of the First Amendment.

Freedom of speech

The First Amendment to the US Constitution is widely considered the most important part of the Bill of Rights. It protects the fundamental rights of conscience, including freedom of speech, religion, and the press. The First Amendment also protects the right to assemble peaceably and to petition the government.

The text of the First Amendment states that "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 speech protected by the First Amendment is a core American belief. It allows for the open exchange of information and ideas, which is essential for democratic self-government. The First Amendment protects unpopular ideas as well as popular ones because, as Justice Oliver Wendell Holmes said, "freedom for the thought that we hate" is necessary for discovering truth. This freedom of expression includes the right to receive information, even if one does not speak out oneself.

While the First Amendment protects against government limits on freedom of expression, it does not prevent private employers from setting their own rules. It also does not allow for completely unrestricted speech. For example, the government may regulate speech that poses a compelling governmental interest or runs afoul of "public morals." Additionally, students have the right to pray in public schools as long as it does not disrupt school operations or involve government employees.

Freedom of the press

The first constitutional amendments, known as the Bill of Rights, were the first 10 amendments to the US Constitution, ratified on December 15, 1791. The first of these, the First Amendment, includes the Freedom of the Press clause.

The First Amendment states that "Congress shall make no law [...] abridging the freedom of speech, or of the press". This clause has been the subject of much debate, with some questioning whether the Free Speech Clause and the Free Press Clause are coextensive, or whether they are distinct. The Supreme Court has considered the regulation of media outlets and analysed the relevant constitutional protections without differentiating between the two clauses.

In 1978, the Court considered whether the institutional press is entitled to greater freedom from government regulations or restrictions than non-press individuals or groups. Justice Potter Stewart argued that the separate mention of freedom of speech and freedom of the press in the First Amendment is an acknowledgment of the critical role played by the press in American society. He stated that the Constitution requires sensitivity to this role and the special needs of the press in performing it effectively.

However, in the same year, Chief Justice Warren Burger wrote that the Court had not yet resolved whether the Press Clause confers upon the institutional press any freedom from government restraint not enjoyed by others. Several Supreme Court holdings indicate that the Free Press Clause does not give the press the power to compel the government to furnish information or grant access to information that the public does not generally have.

The question of whether the Times standard applies to an individual defendant has also been raised, with the Court noting that it has never explicitly made this decision.

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Freedom of assembly

The First Amendment of the U.S. Constitution establishes the right to freedom of assembly, alongside freedom of speech, freedom of the press, and freedom of religion. The text of the First Amendment states that "Congress shall make no law [...] abridging [...] the right of the people peaceably to assemble". This freedom protects the right of individuals to gather on public property, including parks and sidewalks, to engage in expressive activities such as protests, planning meetings, and other social or political actions.

The right to freedom of assembly has been affirmed in several court cases. In DeJonge v. Oregon (1937), the Supreme Court ruled that "the holding of meetings for peaceable political action or other lawful discussion" was protected by the First Amendment, effectively removing the Cruikshank limitation on the right to assemble. The Court described this right as "equally fundamental" to those of free speech and a free press. Similarly, in Thomas v. Collins (1945), the Court struck down a Texas law prohibiting unions from soliciting new members without a permit.

However, it is important to note that the right to freedom of assembly only protects peaceful assembly, and does not restrict all government regulation of assembly. For example, in Virginia v. Hicks (2003), the high court allowed the city of Richmond to restrict access to the streets and sidewalks of a housing project to curb drugs and other crime in the area. The Court ruled that the individual arrested for violating this restriction was not engaged in any First Amendment-protected activity.

The right to freedom of assembly is a fundamental aspect of a democratic society, ensuring that individuals have the ability to come together and express their viewpoints, even if they are unpopular or uncomfortable. This freedom is a key component of civil liberties and helps to limit the power of the government.

Right to petition

The first constitutional amendments, known as the Bill of Rights, were ratified on December 15, 1791. The First Amendment includes the right to petition the government for a redress of grievances. This right allows individuals to raise issues and have them considered by the government. It is an essential part of national citizenship and republican government, guaranteeing citizens' ability to meet peaceably, consult on public affairs, and petition for change.

The right to petition has a long history, with versions of it appearing in many cultures before being incorporated into the First Amendment. In England, the common law from which American law descends, the right to petition was well-established by the time of the Magna Carta. The Petition Clause in the First Amendment merges the English right to petition with the right to a remedy, reflecting the expectation that relief would follow warranted petitions.

The right to petition has been interpreted differently over time. Congress originally spent a significant amount of time defending and facilitating this right, treating it as a due process rather than free speech. Petitions were addressed to the House of Representatives and had to follow specific rules, resembling court filings more than modern messages to Congress. Any member could introduce and advocate for a petition, even if they did not represent the petitioner.

The right to petition has expanded beyond the language of a redress of grievances. The Supreme Court has recognised that the clause protects the right of access to the courts, including the filing and prosecution of well-founded lawsuits. However, this right does not extend to granting immunity from attorney's fees in patent litigation. The right to petition also includes the right to file a lawsuit, though this interpretation has been criticised for not adequately differentiating it from freedom of speech and due process rights.

Today, the right to petition is not well understood, and its original significance has been obscured. Reviving Congress' role in facilitating this right may require rules changes and cultural shifts to encourage substantive engagement between Congress and the people.

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