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 to the US Constitution guarantees the rights of free religion, free speech, freedom of the press, freedom of assembly and freedom to petition. It is considered to be one of the most important amendments, and is one of the most widely debated parts of the US Constitution. Over the years, the Supreme Court has studied the 45 words of the amendment like an entomologist would study a prized beetle. It has been the basis of thousands of court cases over the years.

Creation

When the US Constitution was being considered for adoption by the individual states, one of the chief arguments against it was that there was no specific protection of the rights of citizens from the government. The proponents of the Constitution (known as 'Federalists' at the time) acknowledged this weakness. They agreed to submit a Bill of Rights to the Constitution once it was ratified, by way of the amendment process outlined in the document (in Article V) which requires a two-thirds majority of both houses to be passed and ratification by three-quarters of the states.

Drawing on their own experience, the Founding Fathers of the United States of America believed their nation should strive to correct the many injustices and wrongs they saw in the British model from which they had recently freed themselves. Remembering that many citizens came to the 'New World' due to religious repression at home, they wanted to see that their new government would not meddle in religious affairs. They remembered the events of the American Revolution. They remembered that great orators had roused colonists into patriotic action, that meetings had been held throughout the Atlantic Coast to discuss their rights, that newspapers and pamphlets whipped up the storm of rebellion, and that the Continental Congress had tried to respectfully resolve their grievances with Britain. Being the product of a radical revolution, the First Congress of the United States wanted to be sure that these weapons would forever remain in the arsenal of US warriors of justice.

Passage

James Madison, known as the Father of the Constitution, was elected to the First Congress in the House of Representatives and wrote a list of 17 amendments. Only the last ten ended up being ratified. Although it is a nice sentiment, it is not the case that the rights enumerated in the First Amendment were specifically protected first because of the inherent value of free religion, speech, press, assembly and petition. In Madison's original 17 amendments, freedom of religion came with amendment three, while the freedoms of speech, assembly and petition were ensured with proposed amendment number four. Ahead of those cardinal rights in Madison's list were banal amendments about compensation of Congressmen and issues of proportional representation¹, which would have looked odd in a list of rights. In Madison's proposed original phrasing, the rights which would come to make up the First Amendment went like this:

III. Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.
IV. The freedom of speech, and of the press, and the right of the people peaceably to assemble, and consult for their common good, and apply to the government for redress of grievances, shall not be infringed.

The phrasing the Constitution came to adopt with the First Amendment is very similar, but crucially different concerning religious freedom. The First Amendment has the broader phrase 'respecting the establishment of religion' in place of 'establishing religion'. A strict interpretation of the Constitution would read 'establishing' much more narrowly than 'respecting the establishment'. The second part of Madison's original amendment, 'nor shall the rights of conscience be infringed', was dropped. This phrase was intended to ensure that no man would be compelled to worship in a particular way, against their conscience. If that phrase had not been deleted, it is likely the 'conscience clause' would be cited in court as a constitutional basis for draft-dodging.

In Madison's religion amendment, we see the influence of Thomas Jefferson's landmark 1786 Virginia Statute of Religious Freedom. Jefferson was so proud of his authorship of this statute that it was one of only three accomplishments noted on his epitaph. It is far more eloquently written than Madison's dry, exact constitutional language. Jefferson’s work speaks of natural rights, molestation by government and, oddly enough, the freedom of choice endowed by the Almighty. However, the 'rights of the conscience' is fairly Jeffersonian in tone, and reminiscent of the opening of the Virginia law, Whereas Almighty God hath created the mind free...

The two amendments of religion and speech/press/assembly/petition were passed separately in the House. But on 9 September, 1789 the Senate voted to combine the two into one amendment which read:

Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and petition to the government for the redress of grievances.

With the Senate's editing, the original 17 amendments were combined into 12 amendments. After this, Madison led the House of Representatives to pass a very slightly modified version of the First Amendment that is now memorised by legal scholars, scrutinised by federal judges and obsessed over by the self-appointed guardians of civil liberties.

The First Amendment, along with the other nine amendments which make up the United States Bill of Rights, was officially ratified and took effect on 15 December, 1791, when Virginia approved it. It would take Connecticut, Georgia and Massachusetts until 1939 to ratify the First Amendment and Bill of Rights (although it was just a gesture at that point, ratification having already been achieved).

Judicial History of Freedom of Religion

Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
– From Jefferson's Virginia Statute for Religious Freedom

The Founding Fathers envisioned a land without a single religion and tolerant of all. Freedom of religion has allowed the country to embrace all kinds of immigrants without forcing the Judeo-Christian values which predominate upon them.

Establishment Clause

Congress shall make no law respecting an establishment of religion

The Establishment Clause of the First Amendment forbids the government from doing anything which might have the effect of advancing one religion over another. The founders of the republic did not want a Church of the United States to spring up. And they certainly did not want to see the sort of chaos that comes from the head of state single-handedly converting an entire nation to their form of religion. Yet the founders did not want to see a government which ignored the existence of religion. A careful balance has been struck over the course of many years and many court cases. For whatever reason, many of the important government cases regarding religion and the Establishment Clause are related to education.

In Everson v Board of Education in 1947, the Supreme Court agreed that the Establishment Clause was to be interpreted as meaning more than just prohibiting state establishment of a particular religion. It found that the clause was relevant when discussing any law relating to religion. Justice Hugo Black also first used the word 'wall' to describe the separation of church and state in the US.

Five years later, in 1952, the Supreme Court decided in Zorach v Clauson that schools could release students early to suit their religious needs. Justice William O Douglas authored an opinion, saying the Constitution did not require the government to show a callous indifference to religion.

Engel v Vitale in 1962 held that school prayer, even if it was voluntary, was a violation of the Establishment Clause. Since that case, there have been a multitude of court cases where local school districts or states have tried to make the wording of a prayer vague and voluntary enough to pass by the court. Nevertheless, the Supreme Court has been very consistent over time in saying school prayer is a violation of the Establishment Clause.

The question of government-funded schools became an important constitutional issue over time. This was resolved (sort of) with the Lemon v Kurtzman case of 1971. The Supreme Court held that three things, which became known as the 'Lemon Test', have to be considered before the government can pass a bill concerning religion or a religious institution:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.

Free Exercise Clause

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Cases concerning the Free Exercise Clause of the First Amendment are broadly speaking related to people doing a normally illegal thing which is (or they claim is) an important aspect of their religion. By punishing these people for acting in accordance with their religion, they say the government is acting in contradiction of their First Amendment right to freely exercise their religion.

This can of worms was opened by the 1963 Sherbert v Verner case, which ordered the state of South Carolina to pay unemployment benefits to a member of the Seventh-day Adventist Church when she was fired for refusing to work on the Sabbath. The court ruled that there had to be a 'compelling state interest' to deny a person their right of Free Exercise of Religion. Of course, the phrase 'compelling state interest' threw up quite a few questions. Which interests are compelling enough? Which interests are not compelling enough? All sorts of cases came to the Supreme Court based on this. And some decisions based on the Free Exercise Clause have been inconsistent and contradictory.

For instance, a native American man named Alfred Smith ingested a drug called peyote because his particular church, known as the Native American Church, had ceremonies involving the use of this hallucinogenic drug. He was fired from his job as, what else, a drug rehabilitation counsellor. Smith brought the case to court and the Supreme Court ended up ruling against him in Employment Division v Smith in 1990.

Justice Antonin Scalia wrote that if exceptions for every law were made for every religion it 'would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind’. It would also have probably made the Native American Church much more popular. Yet in 2006, in a case not dissimilar, Gonzales v UDV, the Supreme Court found that a Congressional law known as the Religious Freedom Restoration Act of 1993 made drugs legal for religious purposes.

Judicial History of Freedom of Speech

While free speech was protected under the First Amendment, there is some question as to what that means. When you are burning a flag to make a statement with shut lips, are you 'speaking'? Is pornography speech? Is speech that advocates the violent overthrow of the government protected? How absolute is the freedom of speech? These are the sorts of questions which the Supreme Court has had to interpret over the years.

Symbolic Speech

For years, the Supreme Court has held that any action conveying a message is definable as speech, for the purposes of constitutional interpretation.

In 1989, the Supreme Court handed down an opinion in Texas v Johnson. It decided that the burning of the US flag is an acceptable form of symbolic speech, protected by the First Amendment. An opinion by Justice William Brennan succinctly summed up an important part of the First Amendment:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

One major exception to the principle of allowing symbolic speech came in the case United States v O'Brien in 1968. David O'Brien had burned his draft card and was convicted under a federal law. The Supreme Court upheld that law, and created a test of the appropriateness of government regulation of symbolic speech. The test created said that such speech could be regulated, if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.

Speech in Wartime

Schenck v United States was a landmark case which came about when a man named Schenck sent out anti-conscription mailings during the World War I. Justice Oliver Wendell Holmes wrote the opinion for the court, which said that if a person's speech represented a 'clear and present danger' to the country then the individual would be liable for it. The Supreme Court further held that during times of war a person could be punished for speech that would be permissible in peacetime. It was in the Schenck case that Holmes famously said: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

Obscenity

In 1964, the Supreme Court ruled in Jacobellis v Ohio that censorship of the non-obscene was unconstitutional... in a way. Several justices issued their own opinions, and their confusion sort of muddled the issue for several years. They were unable to come together on a judgment of what it meant for something to be 'obscene'.

Justice Potter Steward famously said that censorship was not constitutional, except in cases of hardcore pornography. To explain what he meant by 'hardcore pornography', he said: I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. The phrase 'I know it when I see it' is famously about as vague as the court ever managed to be.

In 1973, in Miller v California, the Supreme Court cleared things up a bit and created this test for deciding if something is obscene:

1. Whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest.

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Freedom of the Press

That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in US society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.
– Justice Potter Stewart

Some historians believe the proportion of newspapers to people was higher in the revolutionary US than anywhere else at any time in history. There was an incredible amount of published news material and commentary when the Bill of Rights came into being. In fact, a pamphlet by Thomas Paine is widely credited with having lit the fuse of colonial independence. The Founders understood that a free press would help to ensure that the citizenry was informed and engaged, which is, of course, important in a republic. Years later, Justice Potter Stewart said the purpose of ensuring the freedom of the press was 'to create a fourth institution outside the government as an additional check on the three official branches’.

One of the landmark cases relating to freedom of the press came during the Vietnam War. Two major US newspapers got their hands on an unflattering study of the military concerning the war, known as the Pentagon Papers. When they began to publish this report, the Nixon administration sued to stop publication, citing national security. The Supreme Court found in New York Times Co v United States that the administration had not met the heavy burden that is set against prior restraint in the media. In order to censor the media, the government needs to show evidence that there is a threat of 'grave and irreparable' danger to the US.

Libel

In New York Times Co v Sullivan, the Supreme Court decided that in libel cases brought by public officials or public figures there is a standard of 'actual malice'. This means the libelled individual must show that the libeller knew the libellous information was false and distributed it anyway. In practice, this means that sleazy magazines can publish lies with impunity, because it is extremely difficult to prove in court that an individual knew something was untrue. In the 1973 case Gertz v Robert Welch Inc, the Supreme Court held that this actual malice standard did not apply when the libelled person is not a famous or public figure.

In one of the strangest court mismatches in US judicial history, Hustler Magazine, an American pornographic title, was sued by fundamentalist Christian conservative Jerry Falwell. The magazine had published a parody advertisement which claimed Falwell had lost his virginity to his mother in an outhouse. The Supreme Court decided in Hustler Magazine v Falwell that such a publication had a right to make such statements and parodies so long as it was not purporting to be fact. This case was used as a basis for the film The People v Larry Flynt.

Judicial History of Other First Amendment Rights

Throughout US history, a lot of law and interpretation has been forged based on individual cases. Courts do not deal in hypotheticals, so many important aspects of US constitutional theory have been based on the circumstances of a few random people.

Freedom of Assembly

The right to assemble protects those who wish to meet with others to discuss things of a political nature, or otherwise. This right means that even if the group is unpopular the government must protect individual’s freedom to get together.

De Jonge v Oregon in 1937 was one of the few important Supreme Court freedom of assembly cases. It held that the state of Oregon was unlawfully depriving a man named Dirk De Jonge of his First Amendment right to free assembly when it arrested him while he was leading a communist meeting. In Hague v CIO the same sort of situation occurred, except that it was labour unions rather than communists who were assembling. Nevertheless, the respondent in the case, Jersey City, NJ, mayor Frank Hague called the organisers 'communists'.

Freedom to Petition

In every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury.
– From the Declaration of Independence

While today this may be viewed as perhaps the least important of the rights mentioned in the First Amendment, it is one that has been used many times throughout history, and one often ignored by the government. In 1840, Congress decided it would not accept any more petitions from citizens calling for the abolition of slavery, because these petitions were flooding the capital. During World War I, presenting a petition which called for the repeal of the Espionage Act could land a person in prison. And after that war the famous 'Bonus Army' was set up by almost 20,000 veterans to petition the government, but the regular army was brought in to end the demonstration.

The freedom to petition is today synonymous with the right of people to sue the government and other ways to influence government action, such as lobbying.

Incorporation and the 14th Amendment

Although the Bill of Rights was written to apply to the entire country, it originally only applied to the federal government's actions. So, early on, if the state of Ohio decided to regulate free speech to its liking, the First Amendment did not apply to be able to stop that. However, the 14th Amendment, ratified in 1868, includes an important part known as the Due Process Clause. It states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.

This is interpreted to mean that the states cannot make laws which are forbidden by the Constitution, including the Bill of Rights. So, if a state passed a law banning free speech, it would be overturned by the Supreme Court on the basis of the First and 14th Amendments. However, because the Supreme Court only deals with cases that have been brought to it, it has taken quite some time for these freedoms from other levels of government to be 'incorporated' into the Constitution. When a case leads the court to rule on the basis of a part of the Constitution and the Due Process Clause, that part of the Constitution is said to be 'incorporated'. Here is how the various parts of the First Amendment were incorporated:

• Freedom of Speech - Gitlow v New York, 1925
• Freedom of the Press - Near v Minnesota, 1931
• Free Exercise Clause - Cantwell v State of Connecticut, 1940
• Freedom of Assembly - De Jonge v Oregon, 1937
• Establishment Clause - Everson v Board of Education
• Freedom to Petition - Unincorporated²