what rights are included in the 1st amendment

Two of these, which involved congressional representation and pay, were not adopted. The remaining ten amendments, known as the Bill of Rights, were ratified on. The five freedoms guaranteed by the 1st Amendment are speech, press, religion, assembly and petition. Collectively, these are sometimes referred to as freedom. To be sure, free speech is an immutable right protected by the First Amendment, which provides that “Congress shall make no law abridging.
what rights are included in the 1st amendment

First Amendment

What is First Amendment?

The First Amendment, passed by Congress on September 25, 1789 and ratified on December 15, 1791, protects the freedoms of Speech, Religion, Press, Assembly, and Petition for Americans.

Key Takeaways

  • The First Amendment, passed by Congress on September 25, 1789 and ratified on December 15, 1791, protects the freedoms of Speech, Religion, Press, Assembly, and Petition for Americans.
  • Collectively these freedoms protected by the First Amendment are known as “freedom of expression.”
  • The First Amendment is a key part of the Western liberal conception of limited government.

Understanding First Amendment

The First Amendment is the first of the original 10 amendments that constitute the Bill of Rights in the United States Constitution which were designed to protect a number of fundamental rights for Americans. The First Amendment, however, is not absolute. That is why there are prohibitions against knowingly false statements (libel laws), obscenity, and inciting violence. You cannot, for instance, yell “Fire!” in a crowded theater.

Freedoms of speech, press, right to assemble peacefully, and to petition the government for a redress of grievances are vital for a functioning democracy. Freedom of religion is enshrined by the First Amendment clause that prohibits the government from establishing one set religion for all and allows people the free practice of the religion of their choosing. The First Amendment is a hallmark of the conception of limited government.

Collectively the freedoms of Speech, Religion, Press, Assembly, and Petition are known as “freedom of expression”. From the 20th century onward, many individuals and entities have legally challenged the government when they believed their rights were under attack. In response to these legal challenges, courts ranging from the U.S. Supreme Court to federal courts of appeals, district courts, and state courts have issued judgments in landmark First Amendment cases.

The First Amendment protects against the government penalizing expression, but it does not protect against businesses doing so.

Examples of First Amendment Cases

Many of these cases deal with freedom of speech, which is often viewed as the foundation on which the other First Amendment freedoms are based. In a business context, the right to free speech often causes the greatest controversy. In the workplace it gives rise to questions such as whether an employee can be fired for participating in a political rally or for speaking to the press about work conditions. In a more modern context, can someone be terminated for a non-work-related post on social media?

  • Schenck v. United States - This 1919 case was a landmark in this what rights are included in the 1st amendment. Charles Schenck was an antiwar activist during World War I who was arrested for sending leaflets to new armed forces recruits and enlisted men that urged them to ignore their draft notices. The Supreme Court affirmed the defendant’s conviction on the grounds that Schenck was a threat to national security through his attempts to interfere with recruitment and incite insubordination in the armed forces. In his ruling, Justice Oliver Wendell Holmes defined a “clear and present danger test” to determine whether speech is protected by the First Amendment in such cases. This established the principle that an individual who is a “clear and present” danger to U.S. security would not have the right to free speech.
  • Google Employee Firing - A case involving search giant Google Inc. in August 2017 provides another good example. A Google employee, James Damore, posted a 10-page memo to an internal company forum arguing that what rights are included in the 1st amendment were underrepresented in the tech industry because of “biological causes” of differences between men and women, and it criticized the company for its santander business banking customer service and inclusion initiatives. The memo was subsequently leaked to the media, setting off a firestorm of outrage and a heated debate about the limits of free speech in the workplace. Damore was fired shortly thereafter because the memo violated Google’s code of conduct and crossed the line “by advancing harmful gender stereotypes,” according to Google’s CEO. What many people don’t understand is that, as the Washington Post put it at the time of the firing, “the First Amendment protects people from adverse actions by the government, but it does not generally apply to actions by private employers.” There is, after all, no guarantee of employment in the U.S. Constitution. The employee and several other employees with similar issues sued Google in January 2018. The case was dropped in May 2020.
Источник: https://www.investopedia.com/terms/f/first-amendment.asp

James Madison and the First Amendment

The first—and most well-known—amendment of the Constitution reads:

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.

Meaning of the First Amendment

This means that:

  • The U.S. government cannot establish a certain religion for all its citizens. U.S. citizens have the right to choose and practice what faith they want to follow, as long as their practice doesn't break any laws.
  • The U.S. government cannot subject its citizens to rules and laws that prohibit them from speaking their minds, besides in exceptional cases such as dishonest testimony under oath.
  • The press can print and circulate the news without fear of reprisal, even if that news is less than favorable regarding our country or government.
  • U.S. citizens have the right to gather toward common goals and interests without interference from the government or the authorities.
  • U.S. citizens can petition the government to suggest changes and voice concerns. 

James Madison and the First Amendment

James Madison was instrumental in drafting and advocating for both the ratification of the Constitution and the U.S. Bill of Rights. He is one of the Founding Fathers and is also nicknamed "the father of the Constitution." While he is the one who wrote the Bill of Rights, and thus the First Amendment, he wasn't what rights are included in the 1st amendment in coming up with these ideas, nor did they happen overnight.

Madison's Career Before 1789

Some important facts to know about James Madison are that even though he was born into a well-established family, he worked and studied his way into political circles. He became known among his contemporaries as "the best informed man of any point in debate."

He was one of the early supporters of the resistance to British rule, which probably later reflected in the inclusion of the right to assembly in the First Amendment.

In the 1770s and 1780s, Madison held positions on different levels of Virginia's government and was a known supporter of the separation of church and state, also now included in the First Amendment.

Drafting the Bill of Rights

Even though he is the key person behind the Bill of Rights, when Madison was advocating for the new Constitution, he was against any amendments to it. On one hand, he did not believe that the federal government would ever become powerful enough to need any. And at the same time, he was convinced that establishing certain laws and liberties would allow the government to exclude the ones not explicitly mentioned.

However, during his 1789 campaign to get elected into the Congress, in efforts to win his opposition—the anti-federalists—he finally promised he would advocate for adding amendments to the Constitution. When he was then elected into Congress, he followed through with his promise.

Thomas Jefferson's Influence on Madison

At the same time, Madison was very close with Thomas Jefferson who was a strong proponent of civil liberties and many other aspects that are now part of the Bill of Rights. It is widely believed that Jefferson influenced Madison's views regarding this topic.

Jefferson frequently gave Madison recommendations for political reading, especially from European Enlightenment thinkers such as John Locke and Cesare Beccaria. When Madison was drafting the Amendments, it is likely that it wasn't solely because he was keeping his campaign promise, but he probably already believed in the need to protect individual liberties against the federal and state legislatures.

When in 1789, he outlined 12 amendments, it was after reviewing over 200 ideas kevon edmonds 24 7 album songs by different state conventions. Out of these, ultimately 10 were selected, edited, and finally accepted as the Bill of Rights.

As one can see, there are coldwell banker commercial logo factors that played into the drafting and ratification of the Bill of Rights. The anti-federalists, along with Jefferson's influence, states' proposals, and Madison's changing beliefs all contributed to the final version of the Bill of Rights. On an even larger scale, the Bill of Rights built on the Virginia Declaration of Rights, the English Bill of Rights, and the Magna Carta.

History of the First Amendment

Similarly to the entire Bill of Rights, the language of the First Amendment comes from a variety of sources.

Freedom of Religion

As mentioned above, Madison was a first bankers trust customer service of the separation of church and state, and this is probably what translated into the first part of the Amendment. We also know that Jefferson—Madison's influence—was a strong believer of a person having the right to choose their faith, as to him religion was "a matter which [lied] solely between Man and his God."

Freedom of Speech

With regard to the freedom dan wesson bb gun revolver 6 speech, it is safe to assume that Madison's education along with literary and political interests had a great effect on him. He studied at Princeton where a great focus was placed on speech and debate. He also studied the Greeks, who are known for valuing freedom of speech, too—that was the premise of Socrates' and Plato's work.

In addition, we know that during his political career, especially when promoting the ratification of the Constitution, Madison was a great orator and gave an enormous number of successful speeches. Similar free speech protections written into various state constitutions also inspired the language of the First Amendment.

Freedom of the Press

Besides his call-to-action speeches, Madison's eagerness for spreading ideas about the importance of the new Constitution also reflected in his vast contribution to the Federalist Papers—newspaper-published essays explaining to the general public the details of the Constitution and their relevance.

Madison thus highly valued the importance of the uncensored circulation of ideas. Also the Declaration of Independence defied heavy censorship imposed by the British government and upheld by early governors upheld.

Freedom of Assembly

Freedom of Assembly is closely associated with the freedom of speech. In addition, and as mentioned above, Madison's opinions about the need to resist the British rule likely played into inclusion of this freedom into the First Amendment as well.

Right to Petition

This right was established by the Magna Carta already in 1215 and was reiterated in the Declaration of Independence when the colonists accused the British monarch of not listening to their grievances.

Overall, even though Madison wasn't the only one to draft the Bill of Rights and the First Amendment, he was unquestionably the most important actor in its coming to existence. One final point, however, that is not to be forgotten, is that, just like most other politicians of the time, despite lobbying for all kinds of freedoms for the people, What rights are included in the 1st amendment was also an enslaver, which does somewhat taint his achievements.

Sources

  • Rutland, Robert Allen. James Madison: the Founding Father. University of Missouri Press, 1997, p.18.
  • Jefferson, Thomas. “Jefferson's Letter to the Danbury Baptists The Final Letter, as Sent.”, Library of Congress Information Bulletin, 1 Jan. 1802.
  • Hamilton, Alexander, et al. The Federalist Papers, Madison, James. Jay, John. Congress.gov Resources.
Источник: https://www.thoughtco.com/who-wrote-the-first-amendment-721180

This text is taken directly from the Human Rights Act.

Article 10 of the Human Rights Act: Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Источник: https://www.equalityhumanrights.com/en/human-rights-act/article-10-freedom-expression

The First Amendment is literally the first line of defense against the abuse of power by government. What might not be clear, however, is how exactly the amendment plays into business and the corporate world. To talk about that, we spoke with Shanlon Wu, former federal prosecutor and partner at Wu, Grohovsky, & Whipple; Thomas Clare, specialist in complex business disputes and reputation attacks and partner at Clare Locke; and Richard Levick, show regular, chairman and CEO of Levick, a public relations firm that specializes in crisis communications for business and government entities.

ABERMAN: Let’s begin with: what is the First Amendment?

CLARE: Well, let’s start with the text of it. The First Amendment says Congress shall make no the 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 the address of grievances.

So, cutting through all that legal sounding stuff, this is the the First Amendment to the Bill of Rights, and it defines the rights of the people to express themselves, to have a free press, and limits the government’s ability to restrict freedom of speech, freedom of religion, and freedom of expression, more generally.

ABERMAN: For Americans, everyone talks about freedom of speech. Is this why the First Amendment is so critical? Shan, I know you spend a lot of time thinking about this on college campuses. I know, I teach on a college campus, people talk about the First Amendment all the time. Do they really understand what the heck they’re talking about?

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WU: I really don’t think so. There’s a huge debate on college campuses about the First Amendment, and how it intersects with this notion of safe spaces. And you would think, on a college campus, and I hear this a lot with faculty members and the administration, I’m on the board of trustees at Sarah Lawrence College, there’s a concern that there should be a free exchange of ideas, and therefore people should speak their minds and apply critical thinking to it.

But there’s also a counter-current right now, which is that there’s a big concern that certain kinds of words may offend people, may trigger certain traumas. So, they’ve tried to create this concept on campuses of the safe space, where you’re going to be sensitive to the words. So, there’s a big collision going on on the campuses, which is, how can you be respectful of people’s feelings and their experience as minorities, people of color, and at the same nbt bank routing number new york, you want to foster the free exchange of ideas. So, there’s been a lot of collision there, a lot of adversarial positions being taken, so that’s a big issue on the campuses.

ABERMAN: Now, it’s interesting, Shan, thinking about what you just said, and what Tom said a minute ago. Tom, you framed the First Amendment, it’s not that I should be free of you saying something that upsets me, it’s that I should be free of the government putting constraints on my ability to express my free best business twitter accounts to follow, right?

CLARE: Well, that that’s exactly right. I mean, we look at the text of it, it starts with: Congress shall make no law abridging those freedoms. And that’s the way the First Amendment is framed. I think the way that people understand it, though, is different, and it leads to these sorts of conflicts, because people will invoke the First Amendment, and their right to free speech, to support all sorts of things that aren’t necessarily really What rights are included in the 1st amendment Amendment issues. It’s really just, I want to be able to say what I want, and I don’t want you to be able to offend me with the things that you say.

ABERMAN: Richard, I’m going to bring you into the conversation, because you spend your life helping businesses and countries express themselves, often in ways that are going to upset people. How do you react, as a business person, when somebody says, well, I’ve got my First Amendment right to my opinion? How do you manage mine field of free speech?

LEVICK: You know, I think it’s a lot different now than it was before. One is, we’re traveling all over the world. So, obviously, the First Amendment only applies to these United States. But I think most people define, in this country, to find the First Amendment as protecting whatever it is that I say, but not speech that I don’t like, and that I think is an absolutely an opposite of the Jeffersonian ideal of the First Amendment, which is the marketplace of ideas.

One of the concerns that we have right now is that the way in which Donald Trump acts is so intimidating to at least raise, theoretically, if not legally, questions of prior restraint. It certainly feels that the press, he’s trying to intimidate the press from doing its job. He’s trying to intimidate individuals, at times, from having their communications. And although he tries to have it both ways, at once the President of the United States but at the other time simply tweeting on his own personal phone, it raises, I think, questions of fear in this transparent age that most of us have not had to deal with since the McCarthy era.

ABERMAN: Well, let’s expand that a little bit, because I think, and certainly one of the reasons why I wanted have you in the studio is that I’m pretty concerned that a president should be talking about exercising a restriction on private businesses like Facebook, Google, or others, their speech. I bridgepointe marina new bern nc that troubling, knowing what I know about the First Amendment.

Shan, turning to you and the university example, from my experience, teaching, that people who have right wing ideology often find campuses really hard places to be. I’ve been told that they feel unwelcome, I’ve had to be very mindful of this. You talk about safe speech in the classroom, I find when I teach, I need to be mindful of being inclusive about about all types of ideologies, because otherwise I offend. It seems like it’s just that lots of people are feeling like they want to impose their way of thinking by using this First Amendment.

Where does freedom end? Does my right to say what I want end when I punch you in the nose? What are the guideposts we’re supposed to use in this society?

WU: Yeah, I think mayo clinic madison east mankato a really hard question to answer, particularly on college campuses, but I can tell you that the feeling is that there is a conflation of safe spaces, and hate speech, and free speech, and that’s the question that is really hard for me, as a lawyer, to often answer. Because for example, we have hate crimes, and actually, it’s really interesting.

When I was a prosecutor in D.C., they often did not like to charge anything as a hate crime, even when it was obviously a hate crime, because they were worried about having to prove the hate aspect of it, in terms of the First What rights are included in the 1st amendment constriction. So, I think that’s something I’d be curious as to your views, as to where the line comes between hate speech and the right to speech?

CLARE: Right. Well, I think that’s a really insightful point, and I think one of the things that we’ve seen in both legal circles and in the way people talk about it colloquially, is this notion of a hate crime, or hate speech. And I think, just as you said, historically, people were reluctant to attach that label, or it was reserved for only the most extreme of things that had a clearly racial component to it. Now, I think the pendulum has swung, on college campuses and elsewhere, just in the way we talk about things, as dramatically the other direction, where now everything is a hate crime.

Everything is a hate speech, if it’s something that I don’t agree with, and that label has lost some of its meaning, and I actually think that that’s a real detriment to our society. Because there ought to be some sort of an elevated classification of speech for things that truly are motivated by hate. But it’s become so overused, now, in our common parlance, that I think it’s lost its meaning, and especially in today’s political arena, where we have a lot of overheated rhetoric that really doesn’t apply to what’s actually being said.

ABERMAN: I wonder if some of it is, to be blunt, that there’s money to be made in outrage these days, and the media may have, speaking to somebody who has been in the media for years, a place where it’s great to get clicks. It’s great to get people to follow. I mean, are we basically falling into this trap where we’re bank of the west locations albuquerque new mexico outrage, and losing the ability to actually regulate society?

LEVICK: We have books and media selling at all time highs. These are stone age media, which are at an all time high, why? Because just like NASCAR wouldn’t exist without the accidents, we would call it traffic, the same is true for challenges without adversaries. We are addicted to the battle of Donald Trump, whether we are Donald Trump supporters or Donald Trump opponents. It is the accident nature of it. The conflict. And we have now conflated California and Hollywood with Washington and politics, as if entertainment and reality television are how one runs a powerful country.

ABERMAN: I don’t disagree with any of that, but I don’t really think that, if we limit this issue just to Donald Trump, we’re missing the point.

LEVICK: Absolutely.

ABERMAN: The point, as I see it, is that you can’t have freedom unless you understand what freedom means. And right now, I think a lot of people have confused it.

LEVICK: Jonathan, the First Amendment is not a fickle mistress. The First Amendment is not outcome determinative. That is, that we can no more oppose speech we don’t like, than only encourage speech is the vancouver mall open today we do. And I think both the left and the right, whether we look at Donald Trump, or we look at the Me Too movement, that is often not interested in the accused being able to defend themselves, and in fact call it harassing speech, or hate speech, not necessarily always interested in due process or the statute of limitations. And I know I will probably be criticized for saying this, but the First Amendment is something that is, while not absolute, is supposed to be applied blindly as justice.

ABERMAN: I asked that we spend a little time thinking about communicating the rules of the road in this new world. It strikes me, as we come back into the conversation, we live in a really interesting moment in time where so many of the channels that are being used for communication of speech are privately owned or publicly held for-profit businesses. They’re not regulated by the Federal Communications Commission. There’s no Fairness Doctrine, but yet they become almost utilities. Tom, I’ll start with you. What’s a Facebook or Google supposed to do in the current environment, with respect to First Amendment speech?

CLARE: Well, they’re in a tricky spot, because there is, of course, all this public pressure on them to say, how can you allow this content on your site, whether it’s hateful speech, or whether it’s fake news, or external interference with our elections. There’s a lot of external pressure on them to be doing something. On the other hand, they tout themselves as being these neutral platforms, as literally being the modern-day equivalent of the town square, where people can come and exchange free ideas without regard to identity, and having anonymous speech and the value of all of those things.

And Congress has actually given those private companies immunity from defamation liability, because they purport to be the town square. The real challenge exists now because they’re wading into the territory of policing speech. They all have terms and conditions. We all know because we click on them, and say I agree to be bound by Facebook’s terms and conditions in order to have an account. And that says that I can’t post all these categories of speech on there.

But there are people at these private companies that are making decisions about what what qualifies as hate speech, or what qualifies as harassment, or what qualifies as defamation, and they’re calling balls and strikes on what content goes up or down, and those people are exercising that discretion in a way that is getting them in trouble, and getting them a lot of public notice.

ABERMAN: But, and this is where I think lot of the confusion about the First Amendment arises, none of that, as a private business, has anything to do with the the First Amendment. You can regulate speech however you want as a private business, right?

CLARE: Absolutely. And I think that’s something that’s very commonly understood. And a lot of the outrage you hear from people, including about data privacy issues, is, you don’t have a constitutional right to have a Facebook account. You know, this is a private business that is what rights are included in the 1st amendment a service, albeit a very broad one. But if you’re going sign up for Facebook, if you’re going to post things on Facebook, if you’re going to participate in that, you’re agreeing, basically, to a contract with these private companies, and their terms of service.

ABERMAN: So if anything, this is a monopolization issue, this isn’t a First Amendment issue. And I’m not saying these are monopolies, but…

WU: I mean, I guess what I’m unclear on is, clearly the government’s interested. They’re holding hearings. They are coming down on Facebook, Twitter, etc, for not only allowing controversial people, who we often think of as hate speakers, but also for allowing all this automated, fake account activity, which may have been the Russians, or someone else, trying to influence elections. So, the government is definitely interested in this issue, examples of obesity in america you know, what rights are included in the 1st amendment as they get more interested, then that government action perhaps does start to infringe the First Amendment.

LEVICK: There are legitimate and illegitimate reasons to be interested in social media. The accusations that Google or Facebook, or other social media, are biased against the right, is something that, personally, I have a very hard time swallowing, in large part because it was used, initially by the Reagan administration, as this extremely effective argument. Because anything that is than critical, you can dismiss as, well, of course, what would you expect from the New York Times, the Washington Post, Wall Street Journal, or others?

We have to get to a point where we, once again, are at least considering information that’s not necessarily consistent with our preformed arguments. I think, back in the eighties, Mark Hertsgaard did a study of, in fact, this alleged left wing bias in media, going back nearly two hundred years, and found it, in fact, not to be true, and I think we’ll find the same thing today. But the challenges are really fundamental. And that is a question I ask often of myself, is, does our constitution, a living, breathing document, does it keep pace with technology, which is raising issues far beyond what we have the capacity certainly to legislate, but maybe even govern?

ABERMAN: Regulation of speech. There’s another issue, and Thomas, you touched on it briefly when you last answered, defamation. There are limitations on Alex Jones’s ability to talk about Comet Pizza, or somebody’s ability to talk about something in a disparaging way. Where are the limits? And that’s not First Amendment, what is that?

CLARE: So, the First Amendment does not protect defamatory speech. That’s the legal issue, there. But defamation is a very defined class of speech, it’s a false statement of fact about a person, that is published to someone else, that causes reputational harm, and done with a certain culpable mindset, meaning you, under New York times versus Sullivan, that you either knew it was false when you said it, how to find out td bank account number you bangor daily news advertising disregard the truth or falsity when you said it.

So, it’s basically a lie that you told about somebody, that you knew, or should have known, was false. I spend a lot of my practice, when clients come to me and say, I’ve been defamed, explaining to them the point that Richard made earlier. There’s a big difference between defamation and speech you don’t like. And I think for your audience, and for this discussion, the one big divide that’s important for people to understand is, defamation only applies to false statements of fact.

It does not apply to statements of opinion. You can make the most outrageous opinions that you want, publish them as broadly as you want, and have zero liability for defamation. But once you start making up facts about someone, in order to support your argument, that’s when you get into a situation where defamation is at play.

LEVICK: You know, one thing, Jonathan, I would add is, and I think it’s important for us to remember, the First Amendment, as we interpret it today, is largely the evolution of an accidental train ride in a snowstorm a century ago between Justice Learned Hand and Supreme Court Justice Frankfurter. Learned Hand, in a lower court, had a much more progressive view of the First Amendment.

The First Amendment comes to us, as we believe it today and accept it today, in large part because of the Wobblies, many of whom were beaten or killed in the early Union days, anti-World Gift for boyfriend 1st year anniversary One protests, both of which were extremely unpopular speech, but it was through those initially unpopular movements that led to our appreciation as the most important speech to protect is in fact, the unpopular.

WU: One maybe counterpoint to that, and to your point about whether the Constitution has really kept up with technology. It seems to me that it clearly hasn’t. I mean, there’s the ability now to create tens of millions of fake accounts, putting out a particular viewpoint. And if you’re just leaving it to the marketplace of ideas for that to balance out, it’s no longer a fair competition. I mean, a real human being can’t possibly speak out against ten million bots, tweetings five hundred times a day. And so, that, for me, raises the question that you do need some legislation. You may need some government action or oversight.

ABERMAN: That’s kind of where I’m struggling towards as well, which is, it seems to me, we almost need to have, I don’t know how you’d do it, but an objective truths police. Defamation, is it possible to have fraud on the marketplace of ideas?

LEVICK This show now being broadcast by George Orwell…

ABERMAN: Seriously! How do you solve this problem without… Was it Moynahan who used to say you need to have shared facts? You can’t have facts without truth.

LEVICK: I think that both gentlemen here have addressed a critical issue, which is, free speech does not attach to robotics, through the bots, and two, there are limits on speech.

CLARE: One of the things that I see, and I’ve seen in my practice over the twenty years that I’ve been doing defamation work, is this erosion of trust in the media, and it’s not just the professional media, but it’s the erosion of trust in things people read online, or hear on television. And I do believe that there is a correlation between that erosion of trust, and the desire to make free speech consequence-free, that there’s no consequence.

The courts have spent a lot of time eroding accountability principles for speakers. And that is, generally, a good thing in a free society, that there isn’t severe consequences for people who utter speech. But given the fact that now there’s more irresponsible speech, there’s more falsehoods, there’s more robotics out there. There’s also, courts have struggled to keep up with things like the internet, and how do you deal with a hyperlink, and how do you deal with a pnc bank hours in michigan How do these concepts apply and law that was crafted in the 1700s, the 1800s, the 1950s, when a lot of this law came out?

I think that is what has led to the erosion of trust in the media. Just one quick anecdote that I think would be interesting to your listeners: a year ago, we were the counsel for the University of Virginia administrator in the Rolling Stone gang rape defamation case, which is one of the last defamation cases to go to trial. We were picking a jury of a hundred people in the room for the jury selection process, and we asked the question, how many of you distrust the media? Ninety-six hands went up in the morning. Ninety-eight hands went up in the afternoon. And I think that is something we see all around the country, and it’s a function, I think, of a lot of the failures to keep up with the modern times.

WU: I think, to go back to the college campus issue: that, to me, is over dependence on the media. A 1960s kind of notion that Walter Cronkite delivers the truth to us, and I think that, on the college campuses, and even in middle school and grade school, we need to teach our students, and relearn ourselves, how we can be critical in terms of our analysis of this. And one doesn’t have to just say, all the media is always right, or they’re always wrong, you should be able to impose your own standards on that. And that will hold them more accountable, overall.

ABERMAN: I think that’s a great place, unfortunately, I have to end the conversation. Shan, that was a wonderful way to sum it up. I come away from this conversation a lot better informed about what the First Amendment is, but also realizing the enormity of how we’re going to deal with speech in the world that we now live in. Gentlemen, thank you very much. You’re listening to Shan Wu, Tom Clare, and Richard Levick. Gentlemen, thanks for joining on What’s Working in Washington.

Источник: https://federalnewsnetwork.com/whats-working-washington/2018/09/business-and-the-first-amendment/

First Amendment and the Freedom of Speech: Rights and Responsibilities

Welcome

As a member of the University of Wisconsin-Eau Claire community, you are an equal participant in the long and storied history of the promotion of the freedom of expression, academic freedom, and the First Amendment to the United States Constitution. This site highlights common questions about free speech on the campus to explore your rights and responsibilities as a public university what rights are included in the 1st amendment. This information is not intended as legal advice. We look forward to hearing from you.

We all should educate ourselves on how our identities impact our living experiences, use our privilege to uplift others, and have uncomfortable conversations with those around us so that we can gain a better perspective.

Erika Nguyen Psychology Major

Preserving the pursuit of truth

In 1894, the University of Wisconsin Board of Regents declared that the “University of Wisconsin should ever encourage the continual and fearless sifting and winnowing by which alone the truth can be found.” This statement serves as a guiding principle for the past, present, what rights are included in the 1st amendment future of student education both on campus and throughout your life.

The University of Wisconsin-Eau Claire adheres to the principles of the First Amendment and respects each person’s freedom of expression and association. As explained by the University of Wisconsin Board of Regents’ October 2017 Commitment to Academic Freedom and Freedom of Expression, ”[f]reedom of expression includes the right to discuss and present scholarly opinions and conclusions on all matters both in and outside the classroom.” As a member of the campus community, you have the right to listen to diverse perspectives and viewpoints and to speak and write your own views. This is the case because, as Judge Learned Hand wisely opined, “The First Amendment…presupposes that right conclusions are more likely to be gathered out of a multitude of tongues.”

While the University of Wisconsin-Eau Claire believes that respect and civility are the most productive approaches to achieving a more inclusive community, the goal is to provide a challenging intellectual environment through critical thinking that engages diverse ideas. This can be uncomfortable, as you may observe expression that you find offensive or hurtful.

“I want to make sure we know all the facts and hear all the alternatives and listen to all the criticisms. Let us welcome controversial books and controversial authors. For the Bill of Rights is the guardian of our security as well as our liberty. Let us not be afraid of debate or dissent – let us not avoid criticism or non-conformity – let us encourage it…So let the debate go on – and may the best ideas prevail.” 
-John F. Kennedy, April 16, 1959

Frequently Asked Questions

Questions?

For more information, please contact the Dean of Students Office at [email protected] or 715-836-5626. 

Learn more about the Menard Center for Constitutional Studies at UWEC

Источник: https://www.uwec.edu/campus-life/student-expression-rights-responsibilities/first-amendment/

Gutierrez: The First Amendment is misrepresented

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.

Above is the entire text of the First Amendment to the United States Constitution. It was added to the Constitution as part of the Bill of Rights in 1791, in order to secure the rights of the people, rather than set up the new nation’s government.

The First Amendment — the right to free speech, free assembly and freedom of the press — hangs in The Daily’s newsroom. However, I have seen this amendment interpreted incorrectly, especially in recent years.

Not all speech is covered by free speech. Some speech is unprotected by the First Amendment and may be entirely prohibited. As of 2014, there are three unprotected categories: obscenity, child pornography and “fighting words” or “true threats.” Of these three, obscenity is the most controversial, as it was denied First Amendment protection without consideration for harm done. In U.S. v. Stevens, the Supreme Court implied that they are unlikely to add additional unprotected categories, but that it’s possible that they will in future cases.

Outside of unprotected speech, there are still restrictions on free speech. Prior restraint is one method of restriction, and it takes two forms. A law can require that speech be submitted to a body for a license to distribute it, such as movies, or a court can issue a temporary restraining order against specific forms of speech, such as publishing the Pentagon Papers.

Access to certain spaces, although they belong to the U.S. government, is not guaranteed by the First Amendment. For example, because the space outside of a post office is not a traditional public forum, and blocking it is disruptive of the Postal Service’s operations, soliciting in front of a post office is not protected by the First Amendment.

Free speech has also been limited when it threatens one’s safety. Midwest heritage bank chariton iowa numerous protests outside women’s health or abortion clinics, the Supreme Court found that entrances must have a certain buffer zone to allow clinic patients and workers to safely access the services.

Clearly, the First Amendment has its limits. Still, some people use the First Amendment as a defense from people expressing opposing opinions, usually in the form of protest. As recently as this Tuesday, when Jeff Sessions came to campus, what does amazon prime day mean students argued that protests against Sessions’s presence were impinging on the free speech of other students. However, this is not what the First Amendment means. The First Amendment exists to protect the American people from the government, specifically Congress.

The First Amendment does not protect people from private businesses. This is why companies can restrict what employees say at work, such as when James Damore lost his job was for opposing the company’s diversity initiatives by arguing for biological differences between men and women.

The First Amendment does not exist to protect people from other individuals. If someone expresses an opinion, whether it be about the government or their favorite tv show, that person is protected from retribution by the federal government, but another individual is free to disagree and debate.

The only limit on individual speech that can be tried by another individual is libel. Libel refers specifically to facts that can be proved untrue. Libel laws do not penalize true statements that damage reputations, and it is much harder to apply libel laws to public figures, such as celebrities or politicians.

In my experience, the people who most often complain to me that their First Amendment rights are being violated are those who are seeking to oppress another group. If your First Amendment rights allow you to say heinous things about minorities, my First Amendment rights allow me to say that you are an uncaring person. Neither of us can be punished by the government for expressing these opinions, but we can be socially punished by others who disagree with us.

The Constitution exists to protect us from potential government overreach. It is not a social contract that impacts how we interact with one another. Core beliefs and what rights are included in the 1st amendment way people choose to express them are an elemental part of how people choose friends and collaborators To imply that the First Amendment means speech has no consequences is irresponsible and simply not what the Bill of Rights exists to do.

Pallas Gutierrez is a Communication sophomore. They can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.

Источник: https://dailynorthwestern.com/2019/11/07/opinion/gutierrez-the-first-amendment-is-misrepresented/
Constitution of the United States
Preamble   Article I   Article II   Article III   Article IV   Article V   Article VI   
Article VII      AMENDMENTS   
Introduction


Original Text
Preamble
Article I
Section 1   Section 2   Section 3   Section 4   Section 5   Section 6   Section 7   
Section 8   Section 9   Section 10   
Section 1

Section 2






Section 3






Section 4

Section 5




Section 6



Section 7



Section 8














Section 9






td bank credit card call center 10

Article II
Section 1   Section 2   Section 3   Section 4   
Section 1









Section 2




Section 3


Section 4


Article III
Section 1   Section 2   Section 3   
Section 1


Section 2




Section 3


Article IV
Section 1   Section 2   Section 3   Section 4   
Section 1


Section 2




Section 3



Section 4


Article V
   
Article VI
            
Article VII
   

AMENDMENTS
Amendment I (1791)   Amendment II (1791)   
Amendment III (1791)   Amendment IV (1791)   
Amendment V (1791)   Amendment VI (1791)   
Amendment VII (1791)   Amendment VIII (1791)   
Amendment IX (1791)   Amendment X (1791)   
Amendment XI (1795/1798)   Amendment XII (1804)   
Amendment XIII (1865)   Amendment XIV (1868)   
Amendment XV (1870)   Amendment XVI (1913)   
Amendment XVII (1913)   Amendment XVIII (1919)   
Amendment XIX (1920)   Amendment XX (1933)   
Amendment XXI (1933)   Amendment XXII (1951)   
Amendment XXIII (1961)   Amendment XXIV (1964)   
Amendment XXV (1967)   Amendment XXVI (1971)   
Amendment XXVII (1992)   
Amendment I (1791)

Amendment II (1791)

Amendment III (1791)

Amendment IV (1791)

Amendment V (1791)

Amendment VI (1791)

Amendment VII (1791)

Amendment VIII (1791)

Amendment IX (1791)

Amendment X (1791)

Amendment XI (1795/1798)

Amendment XII (1804)

Amendment XIII (1865)

Amendment XIV (1868)

Amendment XV (1870)

Amendment XVI (1913)

Amendment XVII (1913)

Amendment XVIII (1919)

Amendment XIX (1920)

Amendment XX (1933)

Amendment XXI (1933)

Amendment XXII (1951)

Amendment XXIII (1961)

Amendment XXIV (1964)

Amendment XXV (1967)

Amendment XXVI (1971)

Amendment XXVII (1992)
Источник: https://www.senate.gov/civics/constitution_item/constitution.htm

watch the thematic video

The First Amendment Explained

What rights are included in the 1st amendment -

First Amendment

What is First Amendment?

The First Amendment, passed by Congress on September 25, 1789 and ratified on December 15, 1791, protects the freedoms of Speech, Religion, Press, Assembly, and Petition for Americans.

Key Takeaways

  • The First Amendment, passed by Congress on September 25, 1789 and ratified on December 15, 1791, protects the freedoms of Speech, Religion, Press, Assembly, and Petition for Americans.
  • Collectively these freedoms protected by the First Amendment are known as “freedom of expression.”
  • The First Amendment is a key part of the Western liberal conception of limited government.

Understanding First Amendment

The First Amendment is the first of the original 10 amendments that constitute the Bill of Rights in the United States Constitution which were designed to protect a number of fundamental rights for Americans. The First Amendment, however, is not absolute. That is why there are prohibitions against knowingly false statements (libel laws), obscenity, and inciting violence. You cannot, for instance, yell “Fire!” in a crowded theater.

Freedoms of speech, press, right to assemble peacefully, and to petition the government for a redress of grievances are vital for a functioning democracy. Freedom of religion is enshrined by the First Amendment clause that prohibits the government from establishing one set religion for all and allows people the free practice of the religion of their choosing. The First Amendment is a hallmark of the conception of limited government.

Collectively the freedoms of Speech, Religion, Press, Assembly, and Petition are known as “freedom of expression”. From the 20th century onward, many individuals and entities have legally challenged the government when they believed their rights were under attack. In response to these legal challenges, courts ranging from the U.S. Supreme Court to federal courts of appeals, district courts, and state courts have issued judgments in landmark First Amendment cases.

The First Amendment protects against the government penalizing expression, but it does not protect against businesses doing so.

Examples of First Amendment Cases

Many of these cases deal with freedom of speech, which is often viewed as the foundation on which the other First Amendment freedoms are based. In a business context, the right to free speech often causes the greatest controversy. In the workplace it gives rise to questions such as whether an employee can be fired for participating in a political rally or for speaking to the press about work conditions. In a more modern context, can someone be terminated for a non-work-related post on social media?

  • Schenck v. United States - This 1919 case was a landmark in this context. Charles Schenck was an antiwar activist during World War I who was arrested for sending leaflets to new armed forces recruits and enlisted men that urged them to ignore their draft notices. The Supreme Court affirmed the defendant’s conviction on the grounds that Schenck was a threat to national security through his attempts to interfere with recruitment and incite insubordination in the armed forces. In his ruling, Justice Oliver Wendell Holmes defined a “clear and present danger test” to determine whether speech is protected by the First Amendment in such cases. This established the principle that an individual who is a “clear and present” danger to U.S. security would not have the right to free speech.
  • Google Employee Firing - A case involving search giant Google Inc. in August 2017 provides another good example. A Google employee, James Damore, posted a 10-page memo to an internal company forum arguing that women were underrepresented in the tech industry because of “biological causes” of differences between men and women, and it criticized the company for its diversity and inclusion initiatives. The memo was subsequently leaked to the media, setting off a firestorm of outrage and a heated debate about the limits of free speech in the workplace. Damore was fired shortly thereafter because the memo violated Google’s code of conduct and crossed the line “by advancing harmful gender stereotypes,” according to Google’s CEO. What many people don’t understand is that, as the Washington Post put it at the time of the firing, “the First Amendment protects people from adverse actions by the government, but it does not generally apply to actions by private employers.” There is, after all, no guarantee of employment in the U.S. Constitution. The employee and several other employees with similar issues sued Google in January 2018. The case was dropped in May 2020.
Источник: https://www.investopedia.com/terms/f/first-amendment.asp
Constitution of the United States
Preamble   Article I   Article II   Article III   Article IV   Article V   Article VI   
Article VII      AMENDMENTS   
Introduction


Original Text
Preamble
Article I
Section 1   Section 2   Section 3   Section 4   Section 5   Section 6   Section 7   
Section 8   Section 9   Section 10   
Section 1

Section 2






Section 3






Section 4

Section 5




Section 6



Section 7



Section 8














Section 9







Section 10

Article II
Section 1   Section 2   Section 3   Section 4   
Section 1









Section 2




Section 3


Section 4


Article III
Section 1   Section 2   Section 3   
Section 1


Section 2




Section 3


Article IV
Section 1   Section 2   Section 3   Section 4   
Section 1


Section 2




Section 3



Section 4


Article V
   
Article VI
            
Article VII
   

AMENDMENTS
Amendment I (1791)   Amendment II (1791)   
Amendment III (1791)   Amendment IV (1791)   
Amendment V (1791)   Amendment VI (1791)   
Amendment VII (1791)   Amendment VIII (1791)   
Amendment IX (1791)   Amendment X (1791)   
Amendment XI (1795/1798)   Amendment XII (1804)   
Amendment XIII (1865)   Amendment XIV (1868)   
Amendment XV (1870)   Amendment XVI (1913)   
Amendment XVII (1913)   Amendment XVIII (1919)   
Amendment XIX (1920)   Amendment XX (1933)   
Amendment XXI (1933)   Amendment XXII (1951)   
Amendment XXIII (1961)   Amendment XXIV (1964)   
Amendment XXV (1967)   Amendment XXVI (1971)   
Amendment XXVII (1992)   
Amendment I (1791)

Amendment II (1791)

Amendment III (1791)

Amendment IV (1791)

Amendment V (1791)

Amendment VI (1791)

Amendment VII (1791)

Amendment VIII (1791)

Amendment IX (1791)

Amendment X (1791)

Amendment XI (1795/1798)

Amendment XII (1804)

Amendment XIII (1865)

Amendment XIV (1868)

Amendment XV (1870)

Amendment XVI (1913)

Amendment XVII (1913)

Amendment XVIII (1919)

Amendment XIX (1920)

Amendment XX (1933)

Amendment XXI (1933)

Amendment XXII (1951)

Amendment XXIII (1961)

Amendment XXIV (1964)

Amendment XXV (1967)

Amendment XXVI (1971)

Amendment XXVII (1992)
Источник: https://www.senate.gov/civics/constitution_item/constitution.htm

James Madison and the First Amendment

The first—and most well-known—amendment of the Constitution reads:

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.

Meaning of the First Amendment

This means that:

  • The U.S. government cannot establish a certain religion for all its citizens. U.S. citizens have the right to choose and practice what faith they want to follow, as long as their practice doesn't break any laws.
  • The U.S. government cannot subject its citizens to rules and laws that prohibit them from speaking their minds, besides in exceptional cases such as dishonest testimony under oath.
  • The press can print and circulate the news without fear of reprisal, even if that news is less than favorable regarding our country or government.
  • U.S. citizens have the right to gather toward common goals and interests without interference from the government or the authorities.
  • U.S. citizens can petition the government to suggest changes and voice concerns. 

James Madison and the First Amendment

James Madison was instrumental in drafting and advocating for both the ratification of the Constitution and the U.S. Bill of Rights. He is one of the Founding Fathers and is also nicknamed "the father of the Constitution." While he is the one who wrote the Bill of Rights, and thus the First Amendment, he wasn't alone in coming up with these ideas, nor did they happen overnight.

Madison's Career Before 1789

Some important facts to know about James Madison are that even though he was born into a well-established family, he worked and studied his way into political circles. He became known among his contemporaries as "the best informed man of any point in debate."

He was one of the early supporters of the resistance to British rule, which probably later reflected in the inclusion of the right to assembly in the First Amendment.

In the 1770s and 1780s, Madison held positions on different levels of Virginia's government and was a known supporter of the separation of church and state, also now included in the First Amendment.

Drafting the Bill of Rights

Even though he is the key person behind the Bill of Rights, when Madison was advocating for the new Constitution, he was against any amendments to it. On one hand, he did not believe that the federal government would ever become powerful enough to need any. And at the same time, he was convinced that establishing certain laws and liberties would allow the government to exclude the ones not explicitly mentioned.

However, during his 1789 campaign to get elected into the Congress, in efforts to win his opposition—the anti-federalists—he finally promised he would advocate for adding amendments to the Constitution. When he was then elected into Congress, he followed through with his promise.

Thomas Jefferson's Influence on Madison

At the same time, Madison was very close with Thomas Jefferson who was a strong proponent of civil liberties and many other aspects that are now part of the Bill of Rights. It is widely believed that Jefferson influenced Madison's views regarding this topic.

Jefferson frequently gave Madison recommendations for political reading, especially from European Enlightenment thinkers such as John Locke and Cesare Beccaria. When Madison was drafting the Amendments, it is likely that it wasn't solely because he was keeping his campaign promise, but he probably already believed in the need to protect individual liberties against the federal and state legislatures.

When in 1789, he outlined 12 amendments, it was after reviewing over 200 ideas proposed by different state conventions. Out of these, ultimately 10 were selected, edited, and finally accepted as the Bill of Rights.

As one can see, there are many factors that played into the drafting and ratification of the Bill of Rights. The anti-federalists, along with Jefferson's influence, states' proposals, and Madison's changing beliefs all contributed to the final version of the Bill of Rights. On an even larger scale, the Bill of Rights built on the Virginia Declaration of Rights, the English Bill of Rights, and the Magna Carta.

History of the First Amendment

Similarly to the entire Bill of Rights, the language of the First Amendment comes from a variety of sources.

Freedom of Religion

As mentioned above, Madison was a proponent of the separation of church and state, and this is probably what translated into the first part of the Amendment. We also know that Jefferson—Madison's influence—was a strong believer of a person having the right to choose their faith, as to him religion was "a matter which [lied] solely between Man and his God."

Freedom of Speech

With regard to the freedom of speech, it is safe to assume that Madison's education along with literary and political interests had a great effect on him. He studied at Princeton where a great focus was placed on speech and debate. He also studied the Greeks, who are known for valuing freedom of speech, too—that was the premise of Socrates' and Plato's work.

In addition, we know that during his political career, especially when promoting the ratification of the Constitution, Madison was a great orator and gave an enormous number of successful speeches. Similar free speech protections written into various state constitutions also inspired the language of the First Amendment.

Freedom of the Press

Besides his call-to-action speeches, Madison's eagerness for spreading ideas about the importance of the new Constitution also reflected in his vast contribution to the Federalist Papers—newspaper-published essays explaining to the general public the details of the Constitution and their relevance.

Madison thus highly valued the importance of the uncensored circulation of ideas. Also the Declaration of Independence defied heavy censorship imposed by the British government and upheld by early governors upheld.

Freedom of Assembly

Freedom of Assembly is closely associated with the freedom of speech. In addition, and as mentioned above, Madison's opinions about the need to resist the British rule likely played into inclusion of this freedom into the First Amendment as well.

Right to Petition

This right was established by the Magna Carta already in 1215 and was reiterated in the Declaration of Independence when the colonists accused the British monarch of not listening to their grievances.

Overall, even though Madison wasn't the only one to draft the Bill of Rights and the First Amendment, he was unquestionably the most important actor in its coming to existence. One final point, however, that is not to be forgotten, is that, just like most other politicians of the time, despite lobbying for all kinds of freedoms for the people, Madison was also an enslaver, which does somewhat taint his achievements.

Sources

  • Rutland, Robert Allen. James Madison: the Founding Father. University of Missouri Press, 1997, p.18.
  • Jefferson, Thomas. “Jefferson's Letter to the Danbury Baptists The Final Letter, as Sent.”, Library of Congress Information Bulletin, 1 Jan. 1802.
  • Hamilton, Alexander, et al. The Federalist Papers, Madison, James. Jay, John. Congress.gov Resources.
Источник: https://www.thoughtco.com/who-wrote-the-first-amendment-721180

First Amendment to the United States Constitution

1791 amendment limiting government restriction of civil rights

"First Amendment" redirects here. For the first amendments to other constitutions, see First Amendment (disambiguation).

The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which regulate an establishment of religion, or that would prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

The Bill of Rights was proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.

In Everson v. Board of Education (1947), the Court drew on Thomas Jefferson's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st century court decisions which protected various forms of political speech, anonymous speech, campaign finance, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.

Although the First Amendment applies only to state actors,[1] there is a common misconception that it prohibits anyone from limiting free speech, including private, non-governmental entities.[2] Moreover, the Supreme Court has determined that protection of speech is not absolute.[3]

Text

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.[4]

The hand-written copy of the proposed articles of amendment passed by Congress in 1789, cropped to show just the text in the third article that would later be ratified as the First Amendment

Background

Further information: Anti-Federalism

The right to petition for redress of grievances was a principle included in the 1215 Magna Carta, as well as the 1689 English Bill of Rights. In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other twelve states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.

After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.

For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures' request, James Madison proposed twenty constitutional amendments, and his proposed draft of the First Amendment read as follows:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.[7]

This language was greatly condensed by Congress, and passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent. Congress approved and submitted to the states for their ratification twelve articles of amendment on September 25, 1789. The revised text of the third article became the First Amendment, because the last ten articles of the submitted 12 articles were ratified by the requisite number of states on December 15, 1791, and are now known collectively as the Bill of Rights.[10][11]

Freedom of religion

Main articles: Freedom of religion in the United States and Religion in the United States

Religious liberty, also known as freedom of religion, is "the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth."[13] The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing.[13]Freedom of religion[13] is protected by the First Amendment through its Establishment Clause and Free Exercise Clause, which together form the religious liberty clauses of the First Amendment.[14] The first clause prohibits any governmental "establishment of religion" and the second prohibits any governmental interference with "the free exercise thereof."[15] These clauses of the First Amendment encompass "the two big arenas of religion in constitutional law. Establishment cases deal with the Constitution’s ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans’ rights to practice their faith."[16] Both clauses sometimes compete with each other. The Supreme Court in McCreary County v. American Civil Liberties Union (2005) clarified this by the following example: When the government spends money on the clergy, then it looks like establishing religion, but if the government cannot pay for military chaplains, then many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.[15] In his dissenting opinion in McGowan v. Maryland (1961), Justice William O. Douglas illustrated the broad protections offered by the First Amendment's religious liberty clauses:

The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish—whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind, government must be neutral. This freedom plainly includes freedom from religion, with the right to believe, speak, write, publish and advocate anti-religious programs. Board of Education v. Barnette, supra, 319 U. S. 641. Certainly the "free exercise" clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment, by its "establishment" clause, prevents, of course, the selection by government of an "official" church. Yet the ban plainly extends farther than that. We said in Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16, that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.[17]

The history of the Establishment Clause and the Free Exercise Clause and the Supreme Court's own constitutional jurisprudence with respect to these clauses was explained in the 1985 case Wallace v. Jaffree.[19] The Supreme Court noted at the outset that the power of Congress and the states to restrain the individual freedoms protected by the First Amendment is limited to the same extent by said amendment. The First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. The Due Process Clause of the Fourteenth Amendment imposes on the states the same limitations the First Amendment had always imposed on the Congress.[20] This "elementary proposition of law" was confirmed and endorsed time and time again in cases like Cantwell v. Connecticut, 310 U. S. 296, 303 (1940)[a] and Wooley v. Maynard (1977).[b][23] The central liberty that unifies the various clauses in the First Amendment is the individual's freedom of conscience:[24]

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among "religions" – to encompass intolerance of the disbeliever and the uncertain.[25]

Establishment of religion

See also: Establishment Clause

The precise meaning of the Establishment Clause can be traced back to the beginning of 19th century. Thomas Jefferson wrote about the First Amendment and its restriction on Congress in an 1802 reply to the Danbury Baptists,[26] a religious minority that was concerned about the dominant position of the Congregational church in Connecticut, who had written to the newly elected president about their concerns. Jefferson wrote back:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[27]

In Reynolds v. 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 were in violation of social duties or subversive of good order." Quoting from Jefferson's Virginia Statute for Religious Freedom the court stated further in Reynolds:

In the preamble of this act ... religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

A April 22, 1885, cartoon from the Puck magazinedepicting an army of clergymen assaulting a fortress defended by newspaper editors including from Puck, while atop a hill in the background a statue labeled "Constitution" that states "Congress shall make no law respecting an establishment of religion" can be seen.

Reynolds was the first Supreme Court decision to use the metaphor "a wall of separation between Church and State." American historian George Bancroft was consulted by Chief Justice Morrison Waite in Reynolds regarding the views on establishment by the Founding Fathers. Bancroft advised Waite to consult Jefferson and Waite then discovered the above quoted letter in a library after skimming through the index to Jefferson's collected works according to historian Don Drakeman.[28]

The Establishment Clause[29] forbids federal, state, and local laws which purpose is "an establishment of religion." The term "establishment" denoted in general direct aid to the church by the government.[30] The Establishment Clause acts as a double security, for its aim is as well the prevention of religious control over government as the prevention of political control over religion.[14] The First Amendment's framers knew that intertwining government with religion could lead to bloodshed or oppression, because this happened too often historically. To prevent this dangerous development they set up the Establishment Clause as a line of demarcation between the functions and operations of the institutions of religion and government in society.[31] The Federal government of the United States as well as the state governments are prohibited from establishing or sponsoring religion,[14] because, as observed by the Supreme Court in Walz v. Tax Commission of the City of New York (1970), the 'establishment' of a religion historically implied sponsorship, financial support, and active involvement of the sovereign in religious activity.[32] The Establishment Clause thus serves to ensure laws, as said by Supreme Court in Gillette v. United States (1970), which are "secular in purpose, evenhanded in operation, and neutral in primary impact".[33]

The First Amendment's prohibition on an establishment of religion includes many things from prayer in widely varying government settings over financial aid for religious individuals and institutions to comment on religious questions.[15] The Supreme Court stated in this context: "In these varied settings, issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit."[15] The National Constitution Center observes that, absent some common interpretations by jurists, the precise meaning of the Establishment Clause is unclear and that decisions by the United Supreme Court relating to the Establishment Clause often are by 5–4 votes.[34] The Establishment Clause, however, reflects a widely held consensus that there should be no nationally established church after the American Revolutionary War.[34] Against this background the National Constitution Center states:

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organization's selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification.[34]

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregational until the 1830s.[35] In Everson v. Board of Education (1947), the Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states):

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another ... in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect 'a wall of separation between church and State'. ... That wall must be kept high and impregnable. We could not approve the slightest breach.[36]

At the core of the Establishment Clause lays the core principle of denominational neutrality.[38] In Epperson v. Arkansas (1968) the Supreme Court outlined the broad principle of denominational neutrality mandated by the First Amendment: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."[39] The clearest command of the Establishment Clause is, according to the Supreme Court in Larson v. Valente, 456 U.S.228 (1982), that one religious denomination cannot be officially preferred over another.[40] In Zorach v. Clauson (1952) the Supreme Court further observed: "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction."[41] In McCreary County v. American Civil Liberties Union (2005) the Court explained that when the government acts with the ostensible and predominant purpose of advancing religion, then it violates that central Establishment Clause value of official religious neutrality, because there being no neutrality when the government's ostensible object is to take sides.[42]

In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. The Supreme Court in the same case made it also clear that state governments and the federal government are prohibited from passing laws or imposing requirements which aid all religions as against non-believers, as well as aiding those religions based on a belief in the existence of God as against those religions founded on different beliefs. In Board of Education of Kiryas Joel Village School District v. Grumet (1994),[43] the Court concluded that "government should not prefer one religion to another, or religion to irreligion."[44] In a series of cases in the first decade of the 2000s—Van Orden v. Perry (2005),[45]McCreary County v. ACLU (2005),[46] and Salazar v. Buono (2010)[47]—the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.

Separationists

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States (1878), when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison,[49] who drafted the First Amendment; Madison used the metaphor of a "great barrier".[50]

In Everson, the Court adopted Jefferson's words.[48] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities".[51]

Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission of the City of New York (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[52]

  1. the statute (or practice) lacked a secular purpose;
  2. its principal or primary effect advanced or inhibited religion; or
  3. it fostered an excessive government entanglement with religion.

The Lemon test has been criticized by justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.[53] In Agostini v. Felton (1997), the entanglement prong of the Lemon test was converted to simply being a factor in determining the effect of the challenged statute or practice.[31] In Zelman v. Simmons-Harris (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.[53] Further tests, such as the endorsement test and coercion test, have been developed to determine whether a government action violated the Establishment Clause.[54][55]

Felix Frankfurter called in his concurrence opinion in McCollum v. Board of Education (1948) for a strict separation between state and church: "Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a "wall of separation", not of a fine line easily overstepped. [...] "The great American principle of eternal separation"—Elihu Root's phrase bears repetition—is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity."[56]

In Lemon the Court however stated that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable", the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall', is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."[57]

Accommodationists

Accommodationists,[58] in contrast, argue along with Justice William O. Douglas that "[w]e are a religious people whose institutions presuppose a Supreme Being."[59][c] Furthermore, as observed by Chief Justice Warren E. Burger in Walz v. Tax Commission of the City of New York (1970) with respect to the separation of church and state: "No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts—one that seeks to mark boundaries to avoid excessive entanglement."[32] He also coined the term "benevolent neutrality" as a combination of neutrality and accommodationism in Walz to characterize a way to ensure that there is no conflict between the Establishment Clause and the Free Exercise Clause.[60][d] Burger's successor, William Rehnquist, called for the abandonment of the "wall of separation between church and State" metaphor in Wallace v. Jaffree (1985), because he believed this metaphor was based on bad history and proved itself useless as a guide to judging.[62]

David Shultz has said that accommodationists claim the Lemon test should be applied selectively.[59] As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor 'developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals'.[63][64] In Lynch v. Donnelly (1984), the Supreme Court observed that the "concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."[65]

Free exercise of religion

See also: Free Exercise Clause

The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. The First Amendment makes clear that it sought to protect "the free exercise" of religion, or what might be called "free exercise equality."[13] Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits governmental interference with religious belief and, within limits, religious practice.[14] "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order."[66] The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion, but also against penalties on the free exercise of religion and against indirect governmental coercion.[67] Relying on Employment Division v. Smith (1990)[68] and quoting from Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993)[69] the Supreme Court stated in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for "special disabilities" based on their "religious status" must be covered by the application of strict scrutiny.[70]

In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can regulate religious practices like human sacrifice or the obsolete Hindu practice of suttee. The Court stated that to rule otherwise, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances."[71]

In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendmentapplied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.[72] Religious freedom is a universal right of all human beings and all religions, providing for the free exercise of religion or free exercise equality. Due to its nature as fundamental to the American founding and to the ordering of human society, it is rightly seen as a capricious right, i.e. universal, broad, and deep—though not absolute.[13]Justice Field put it clearly in Davis v. Beason (1890): "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation."[73] Furthermore, the Supreme Court in Employment Division v. Smith made clear that "the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U. S. 252, 455 U. S. 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 310 U. S. 595 (collecting cases)."[e][75][16]Smith also set the precedent[76] "that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion."[77]

To accept any creed or the practice of any form of worship can't be compelled by laws, because, as stated by the Supreme Court in Braunfeld v. Brown (1961), the freedom to hold religious beliefs and opinions is absolute.[78] Federal or state legislation can't therefore make it a crime to hold any religious belief or opinion due to the Free Exercise Clause.[78] Legislation by the United States or any constituent state of the United States which forces anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets is also barred by the Free Exercise Clause.[78] Against this background, the Supreme Court stated that Free Exercise Clause broadly protects religious beliefs and opinions:

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner supra, 374 U.S. at 374 U. S. 402. The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U. S. 488 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U. S. 78, 322 U. S. 86–88 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67, 345 U. S. 69 (1953); cf. Larson v. Valente, 456 U. S. 228, 456 U. S. 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church, 393 U. S. 440, 393 U. S. 445–452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 344 U. S. 95–119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696, 426 U. S. 708–725 (1976). But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf."[79]

In Sherbert v. Verner (1963),[80] the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This meant the government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.[81] In Wisconsin v. Yoder (1972), the Court ruled that a law which "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face", would be unconstitutional.[82][83]

The need for a compelling governmental interest was narrowed in Employment Division v. Smith (1990),[84] which held no such interest was required under the Free Exercise Clause regarding a neutral law of general applicability that happens to affect a religious practice, as opposed to a law that targets a particular religious practice (which does require a compelling governmental interest).[85] In Church of Lukumi Babalu Aye v. City of Hialeah (1993),[86] in which the meaning of "neutral law of general applicability" was elaborated by the court,[87] the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable", the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.[88] In this case the Supreme Court also stated that inquiries whether laws discriminate based on religion doesn't end with the text of the laws at issue. Facial neutrality of laws (i.e. laws which are apparently neutral in their language but in reality discriminate against a particular group) is not determinative in these inquiries, because both the Free Exercise Clause and the Establishment Clause extends beyond facial discrimination.[89] The Supreme Court explained that "[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" and "[t]he Free Exercise Clause protects against governmental hostility which is masked as well as overt."[89] The neutrality of a law is also suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation.[90] The Court also observed: "The Free Exercise Clause "protect[s] religious observers against unequal treatment," Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 148 (1987) (STEVENS, J., concurring in judgment), and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause."[91]

The U.S. guarantees freedom of religion, and some churches in the U.S. take strong stances on political subjects.

In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), seeking to restore the compelling interest requirement applied in Sherbert and Yoder. In City of Boerne v. Flores (1997),[92] the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.[93] Congress can enact legislation to expand First Amendment free exercise rights through its enforcement powers in Section 5 of the Fourteenth Amendment, but to do so "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."[94] The decision in City of Boerne struck down the Religious Freedom Restoration Act RFRA in so far as it applied to states and other local municipalities within them.,[94] so that partly in response to it 21 states enacted State Religious Freedom Restoration Acts since 1993.[95] According to the court's ruling in Gonzales v. UDV (2006),[96] RFRA remains applicable to federal laws and so those laws must still have a "compelling interest."[97]

RFRA secures Congress’ view of the right to free exercise under the First Amendment, and it provides a remedy to redress violations of that right.[98] The Supreme Court decided in light of this in Tanzin v. Tanvir (2020) that the Religious Freedom Restoration Act's express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.[99] This decision is significant "not only for the plaintiffs but also for cases involving violations of religious rights more broadly."[100] In the 1982 U.S. Supreme Court case United States v. Lee (1982) (1982) the Court declared: "Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity."[101][102] The Supreme Court in Estate of Thornton v. Caldor, Inc. (1985) echoed this statement by quoting Judge Learned Hand from his 1953 case Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (CA2 1953): "The First Amendment ... gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his own religious necessities."[103] In Burwell v. Hobby Lobby Stores, Inc. (2014) the Supreme Court had to decide, with a view to the First Amendment's Free Exercise Clause and the federal Religious Freedom Restoration Act, "the profound cultural question of whether a private, profit-making business organized as a corporation can "exercise" religion and, if it can, how far that is protected from government interference."[104] The Court decided that closely held, for-profit corporations have free exercise rights under the RFRA,[105] but its decision was not based on the constitutional protections of the First Amendment.[106]

In Locke v. Davey (2004), the Court stated, "[g]iven the historic and substantial state interest at issue, it cannot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect",[107] explaining that denying funding a scholarship when it was going to be used for education in theology and when that state's constitution forbids state aid to religious institutions "was not presumptively unconstitutional, because the state was neither criminalizing nor penalizing the study of theology."[108] The Court ruled therefore that a state has a "substantial state interest" in denying funding a scholarship when it was going to be used for education in theology and when that state's constitution forbids state aid to religious institutions.[108] In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017),[109] the Court ruled that denying a generally available public benefit on account of the religious nature of an institution violates the Free Exercise Clause.[110] In Espinoza v. Montana Department of Revenue (2020),[111] the Court ruled that the Free Exercise Clause forbad a state from denying a tax credit on the basis of a Blaine Amendment in that state's constitution, which the Court said is subject to the "strictest scrutiny" and can only survive if it is "narrowly tailored" to promote "interests of the highest order".[112]

Freedom of speech and of the press

Further information: Freedom of speech in the United States and United States free speech exceptions

Inscription of the First Amendment (December 15, 1791) in front of Independence Hallin Philadelphia

The First Amendment broadly protects the rights of free speech and free press.[113] Free speech means the free and public expression of opinions without censorship, interference and restraint by the government.[114][115][116][117] The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say.[118] Free press means the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.[119][120]

The Supreme Court of the United States characterized the rights of free speech and free press as fundamental personal rights and liberties and noted that the exercise of these rights lies at the foundation of free government by free men.[121][122] In Bond v. Floyd (1966), a case involving the Constitutional shield around the speech of elected officials, the Supreme Court declared that the First Amendment central commitment is that, in the words of New York Times Co. v. Sullivan (1964), "debate on public issues should be uninhibited, robust, and wide-open."[123] The Court further explained that just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.[123] The Supreme Court in Chicago Police Dept. v. Mosley (1972) 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 the continued building of our politics and culture, and to 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.""[113]

The level of protections with respect to free speech and free press given by the First Amendment is not limitless. As stated in his concurrence in Chicago Police Dept. v. Mosley (1972), Chief Justice Warren E. Burger said:

"Numerous holdings of this Court attest to the fact that the First Amendment does not literally mean that we "are guaranteed the right to express any thought, free from government censorship." This statement is subject to some qualifications, as for example those of Roth v. United States, 354 U. S. 476 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). See also New York Times Co. v. Sullivan, 376 U. S. 254 (1964)."[124]

Attached to the rights of free speech and free press as the core rights to utter and to print are several peripheral rights that make these core rights more secure. The peripheral rights encompass not only freedom of association, including privacy in one's associations, but also, in the words of Griswold v. Connecticut (1965), "the freedom of the entire university community", i.e., the right to distribute, the right to receive, and the right to read, as well as freedom of inquiry, freedom of thought, and freedom to teach.[125] The United States Constitution protects, according to the Supreme Court in Stanley v. Georgia (1969), the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts.[126] As stated by the Court in Stanley: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."[127]

Wording of the clause

The First Amendment bars Congress from "abridging the freedom of speech, or of the press". U.S. Supreme Court Justice John Paul Stevens commented about this phraseology in a 1993 journal article: "I emphasize the word 'the' in the term 'the freedom of speech' because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech." Stevens said that, otherwise, the clause might absurdly immunize things like false testimony under oath.[128] Like Stevens, journalist Anthony Lewis wrote: "The word 'the' can be read to mean what was understood at the time to be included in the concept of free speech." But what was understood at the time is not 100% clear. In the late 1790s, the lead author of the speech and press clauses, James Madison, argued against narrowing this freedom to what had existed under English common law:

The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.[131]

Madison wrote this in 1799, when he was in a dispute about the constitutionality of the Alien and Sedition Laws, which was legislation enacted in 1798 by President John Adams' Federalist Party to ban seditious libel. Madison believed that legislation to be unconstitutional, and his adversaries in that dispute, such as John Marshall, advocated the narrow freedom of speech that had existed in the English common law.[131]

Speech critical of the government

The Supreme Court declined to rule on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. For example, the Supreme Court never ruled on the Alien and Sedition Acts; three Supreme Court justices riding circuit presided over sedition trials without indicating any reservations. The leading critics of the law, Vice President Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment and other Constitutional provisions. Jefferson succeeded Adams as president, in part due to the unpopularity of the latter's sedition prosecutions; he and his party quickly overturned the Acts and pardoned those imprisoned by them. In the majority opinion in New York Times Co. v. Sullivan (1964),[135] the Court noted the importance of this public debate as a precedent in First Amendment law and ruled that the Acts had been unconstitutional: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."[136]

World War I

Further information: Clear and present danger

During the patriotic fervor of World War I and the First Red Scare, the Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States". Specifically, the Espionage Act of 1917 states that if anyone allows any enemies to enter or fly over the United States and obtain information from a place connected with the national defense, they will be punished.[138] Hundreds of prosecutions followed. In 1919, the Supreme Court heard four appeals resulting from these cases: Schenck v. United States, Debs v. United States, Frohwerk v. United States, and Abrams v. United States.

In the first of these cases, Socialist Party of America official Charles Schenck had been convicted under the Espionage Act for publishing leaflets urging resistance to the draft. Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. In Schenck v. United States, the Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction.[142] Debate continued over whether Schenck went against the right to freedom of speech protected by the First Amendment. Justice Oliver Wendell Holmes, Jr., writing for the Court, explained that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."[143] One week later, in Frohwerk v. United States, the court again upheld an Espionage Act conviction, this time that of a journalist who had criticized U.S. involvement in foreign wars.[145]

In Debs v. United States, the Court elaborated on the "clear and present danger" test established in Schenck.[146] On June 16, 1918, Eugene V. Debs, a political activist, delivered a speech in Canton, Ohio, in which he spoke of "most loyal comrades were paying the penalty to the working class—these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft."[147] Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger", taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services".[148] In Abrams v. United States, four Russian refugees appealed their conviction for throwing leaflets from a building in New York; the leaflets argued against President Woodrow Wilson's intervention in Russia against the October Revolution. The majority upheld their conviction, but Holmes and Justice Louis Brandeis dissented, holding that the government had demonstrated no "clear and present danger" in the four's political advocacy.

Extending protections

Justice Louis Brandeiswrote several dissents in the 1920s upholding free speech claims.

The Supreme Court denied a number of Free Speech Clause claims throughout the 1920s, including the appeal of a labor organizer, Benjamin Gitlow, who had been convicted after distributing a manifesto calling for a "revolutionary dictatorship of the proletariat". In Gitlow v. New York (1925), the Court upheld the conviction, but a majority also found that the First Amendment applied to state laws as well as federal laws, via the Due Process Clause of the Fourteenth Amendment. Holmes and Brandeis dissented in several more cases in this decade, however, advancing the argument that the Free Speech Clause protected a far greater range of political speech than the Court had previously acknowledged. In Whitney v. California (1927),[153] in which Communist Party USA organizer Charlotte Anita Whitney had been arrested for "criminal syndicalism", Brandeis wrote a dissent in which he argued for broader protections for political speech:

Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

In Herndon v. Lowry (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon, who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States. The Court reversed Herndon's conviction, holding that Georgia had failed to demonstrate any "clear and present danger" in Herndon's political advocacy. The clear and present danger test was again invoked by the majority in the 1940 Thornhill v. Alabama decision in which a state antipicketing law was invalidated.[156][157][158] The importance of freedom of speech in the context of "clear and present danger" was emphasized in Terminiello v. City of Chicago (1949)[159] where the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion.[160] Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.[160] Restrictions on free speech are only permissible when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.[160] Justice William O. Douglas wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."[160]

Although the Court referred to the clear and present danger test in a few decisions following Thornhill,[161] the bad tendency test was not explicitly overruled,[156] and the clear and present danger test was not applied in several subsequent free speech cases involving incitement to violence.[162] In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence".[163] The statute provided law enforcement a tool to combat Communist leaders. Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party.[164] In Dennis v. United States (1951),[165] the Court upheld the Smith Act.[f] Chief Justice Fred M. Vinson relied on Holmes' "clear and present danger" test as adapted by Learned Hand: "In each case [courts] must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger."[167] Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."[168] In a concurring opinion, Justice Felix Frankfurter proposed a "balancing test", which soon supplanted the "clear and present danger" test:

The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process.

In Yates v. United States (1957), the Supreme Court limited the Smith Act prosecutions to "advocacy of action" rather than "advocacy in the realm of ideas". Advocacy of abstract doctrine remained protected while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act.[169]

During the Vietnam War, the Court's position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien (1968),[171] fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system,[172][173] the next year, the court handed down its decision in Brandenburg v. Ohio (1969),[174] expressly overruling Whitney v. California.Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.[176] Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms:

[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.[178]

In Cohen v. California (1971),[179] the Court voted reversed the conviction of a man wearing a jacket reading "Fuck the Draft" in the corridors of a Los Angeles County courthouse. Justice John Marshall Harlan II wrote in the majority opinion that Cohen's jacket fell in the category of protected political speech despite the use of an expletive: "One man's vulgarity is another man's lyric."

Political speech

Anonymous speech

In Talley v. California (1960),[181] the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. Justice Hugo Black wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. ... Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind."[182] In McIntyre v. Ohio Elections Commission (1995),[183] the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature.[184] However, in Meese v. Keene (1987),[185] the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda", requiring their sponsors to be identified.[186]

Campaign finance

See also: Campaign finance reform in the United States

In Buckley v. Valeo (1976),[187] the Supreme Court reviewed the Federal Election Campaign Act of 1971 and related laws, which restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court affirmed the constitutionality of limits on campaign contributions, saying they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."[188] However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech".[189]

The court again scrutinized campaign finance regulation in McConnell v. Federal Election Commission (2003).[191] The case centered on the Bipartisan Campaign Reform Act of 2002 (BCRA), a federal law that imposed new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which the Court agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures".[192] The Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v. Des Moines Independent Community School District.

In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007),[193] the Court sustained an "as applied" challenge to BCRA, holding that issue ads may not be banned from the months preceding a primary or general election. In Davis v. Federal Election Commission (2008),[194] the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his or her own money violated the freedom of speech of the self-financing candidate.[195]

In Citizens United v. Federal Election Commission (2010),[196] the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce (1990),[197] which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.[198] In other words, the ruling was considered to hold that "political spending is a form of protected speech under the First Amendment".[199]

In McCutcheon v. Federal Election Commission (2014),[200] the Court ruled that federal aggregate limits on how much a person can donate to candidates, political parties, and political action committees, combined respectively in a two-year period known as an "election cycle", violated the Free Speech Clause of the First Amendment.[201]

Flag desecration

The divisive issue of flag desecration as a form of protest first came before the Supreme Court in Street v. New York (1969).[202] In response to hearing an erroneous report of the murder of civil rights activist James Meredith, Sidney Street burned a 48-star U.S. flag. Street was arrested and charged with a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]".[203] The Court, relying on Stromberg v. California (1931),[204] found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate he had been convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist[ed] the pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.[205]

The ambiguity with regard to flag-burning statutes was eliminated in Texas v. Johnson (1989).[207] In that case, Gregory Lee Johnson burned an American flag at a demonstration during the 1984 Republican National Convention in Dallas, Texas. Charged with violating a Texas law prohibiting the vandalizing of venerated objects, Johnson was convicted, sentenced to one year in prison, and fined $2,000. The Supreme Court reversed his conviction. Justice William J. Brennan, Jr. wrote in the decision that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."[208] Congress then passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman (1990).[209] A Flag Desecration Amendment to the U.S. Constitution has been proposed repeatedly in Congress since 1989, and in 2006 failed to pass the Senate by a single vote.[211]

Falsifying military awards

While the unauthorized wear or sale of the Medal of Honor has been a punishable offense under federal law since the early twentieth century,[212][213] the Stolen Valor Act criminalized the act of not only wearing, but also verbally claiming entitlement to military awards a person did not in fact earn.[214] In United States v. Alvarez (2012), the Supreme Court struck down the Act, ruling that the First Amendment bars the government from punishing people for making false claims regarding military service or honors where the false claim was not "made to effect a fraud or secure moneys or other valuable considerations". The Supreme Court could not agree on a single rationale for its decision.[215]

Compelled speech

Main article: Compelled speech

The Supreme Court has determined that the First Amendment also protects citizens from being compelled to say or pay for certain speech.

In West Virginia State Board of Education v. Barnette (1943), the Court ruled that school children could not be punished for refusing either to say the pledge of allegiance or salute the American flag. The Court also overruled Minersville School District v. Gobitis (1940), which had upheld such punishments of school children.[216]

In National Institute of Family and Life Advocates v. Becerra (2018), the Court ruled that a California law requiring crisis pregnancy centers to post notices informing patients they can obtain free or low-cost abortions and include the number of the state agency that can connect the women with abortion providers violated those centers' right to free speech.[217]

In Janus v. AFSCME (2018), the Court ruled that requiring a public sector employee to pay dues to a union to which he is not a member violated the First Amendment. According to the Court, "the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay." The Court also overruled Abood v. Detroit Board of Education (1977), which had upheld legally obligating public sector employees to pay such dues.[218]

Commercial speech

Main article: Commercial speech

Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Court uses a list of four indicia:[219]

  1. The contents do "no more than propose a commercial transaction".
  2. The contents may be characterized as advertisements.
  3. The contents reference a specific product.
  4. The disseminator is economically motivated to distribute the speech.

Alone, each indicium does not compel the conclusion that an instance of speech is commercial; however, "[t]he combination of all these characteristics ... provides strong support for ... the conclusion that the [speech is] properly characterized as commercial speech."[220]

In Valentine v. Chrestensen (1942),[221] the Court upheld a New York City ordinance forbidding the "distribution in the streets of commercial and business advertising matter", ruling the First Amendment protection of free speech did not include commercial speech.[222]

In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976),[223] the Court overturned Valentine and ruled that commercial speech was entitled to First Amendment protection:

What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. ... [W]e conclude that the answer to this one is in the negative.[224]

In Ohralik v. Ohio State Bar Association (1978),[225] the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech:

We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite a dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee with respect to the latter kind of speech.[226]

In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980),[227] the Court clarified what analysis was required before the government could justify regulating commercial speech:

  1. Is the expression protected by the First Amendment? Lawful? Misleading? Fraud?
  2. Is the asserted government interest substantial?
  3. Does the regulation directly advance the governmental interest asserted?
  4. Is the regulation more extensive than is necessary to serve that interest?

Six years later, the U.S. Supreme Court, applying the Central Hudson standards in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986),[228] affirmed the Supreme Court of Puerto Rico's conclusion that Puerto Rico's Games of Chance Act of 1948, including the regulations thereunder, was not facially unconstitutional. The lax interpretation of Central Hudson adopted by Posadas was soon restricted under 44 Liquormart, Inc. v. Rhode Island (1996),[229] when the Court invalidated a Rhode Island law prohibiting the publication of liquor prices.

School speech

Main article: School speech (First Amendment)

In Tinker v. Des Moines Independent Community School District (1969),[230] the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War. The Court ruled that the school could not restrict symbolic speech that did not "materially and substantially" interrupt school activities. Justice Abe Fortas wrote:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ... [S]chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students ... are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.[232]

In Healy v. James (1972), the Court ruled that Central Connecticut State College's refusal to recognize a campus chapter of Students for a Democratic Society was unconstitutional, reaffirming Tinker.

However, since 1969 the Court has also placed several limitations on Tinker. In Bethel School District v. Fraser (1986),[234] the Court ruled that a student could be punished for his sexual-innuendo-laced speech before a school assembly and, in Hazelwood v. Kuhlmeier (1988),[235] the Court found that schools need not tolerate student speech that is inconsistent with their basic educational mission. In Morse v. Frederick (2007),[237] the Court ruled that schools could restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use".[238]

In 2014, the University of Chicago released the "Chicago Statement", a free speech policy statement designed to combat censorship on campus. This statement was later adopted by a number of top-ranked universities including Princeton University, Washington University in St. Louis, Johns Hopkins University, and Columbia University.[239][240]

Internet access

In Packingham v. North Carolina (2017), the Supreme Court held that a North Carolina law prohibiting registered sex offenders from accessing various websites impermissibly restricted lawful speech in violation of the First Amendment.[241] The Court held that "a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more."[242][243]

Obscenity

Further information: United States obscenity law

Justice Potter Stewartwrote that while he could not precisely define pornography, he "[knew] it when [he saw] it".

According to the U.S. Supreme Court, the First Amendment's protection of free speech does not apply to obscene speech. Therefore, both the federal government and the states have tried to prohibit or otherwise restrict obscene speech, in particular the form that is now[update] called pornography. As of 2019[update], pornography, except for child pornography, is in practice free of governmental restrictions in the United States, though pornography about "extreme" sexual practices is occasionally prosecuted. The change in the twentieth century, from total prohibition in 1900 to near-total tolerance in 2000, reflects a series of court cases involving the definition of obscenity. The U.S. Supreme Court has found that most pornography is not obscene, a result of changing definitions of both obscenity and pornography.[35] The legal tolerance also reflects changed social attitudes: one reason there are so few prosecutions for pornography is that juries will not convict.[244]

In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin (1868).[245] The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall".[246] In the early twentieth century, literary works including An American Tragedy (Theodore Dreiser, 1925) and Lady Chatterley's Lover (D.H. Lawrence, 1928) were banned for obscenity. In the federal district court case United States v. One Book Called Ulysses (1933), Judge John M. Woolsey established a new standard to evaluate James Joyce's novel Ulysses (1922), stating that works must be considered in their entirety, rather than declared obscene on the basis of an individual part of the work.[247]

The Supreme Court ruled in Roth v. United States (1957)[248] that the First Amendment did not protect obscenity.[247] It also ruled that the Hicklin test was inappropriate; instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest".[249] This definition proved hard to apply, however, and in the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene. Justice Potter Stewart, in Jacobellis v. Ohio (1964),[251] famously said that, although he could not precisely define pornography, "I know it when I see it".[252][253]

The Roth test was expanded when the Court decided Miller v. California (1973).[254] 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.[255]

Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest, leaving the question of obscenity to local authorities.[247]Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber (1982) and Osborne v. Ohio (1990),[256][257] ruling that the government's interest in protecting children from abuse was paramount.[258]

Personal possession of obscene material in the home may not be prohibited by law. In Stanley v. Georgia (1969),[260] the Court ruled that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch."[127] However, it is constitutionally permissible for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition (2002)[261] further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child" (simulated child pornography) it was overly broad and unconstitutional under the First Amendment[262] and:

First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.[263]

In United States v. Williams (2008),[264] the Court upheld the PROTECT Act of 2003, ruling that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.[265][266]

Memoirs of convicted criminals

In some states, there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit.[267] These laws were a response to offers to David Berkowitz to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board (1991).[268] That statute did not prohibit publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a time. The interest from the escrow account was used to fund the New York State Crime Victims Board—an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.[269]

Defamation

Further information: United States defamation law

Justice William J. Brennan, Jr. wrote the landmark decision New York Times Co. v. Sullivan, requiring the demonstration of "actual malice" in libel suits against public figures.

American tort liability for defamatory speech or publications traces its origins to English common law. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by William Blackstone and Edward Coke. An action of slander required the following:

  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.

An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements. For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and true statements could damage this support even more than false ones. Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule".

Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone's argument that the punishment of "dangerous or offensive writings ... [was] necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty" and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written. Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.

The Supreme Court's ruling in New York Times Co. v. Sullivan (1964)[135] fundamentally changed American defamation law. The case redefined the type of "malice" needed to sustain a libel case. Common law malice consisted of "ill-will" or "wickedness". Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by "clear and convincing evidence" that there was actual malice. The case involved an advertisement published in The New York Times indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel, saying the advertisement damaged his reputation. The Supreme Court unanimously reversed the $500,000 judgment against the Times. Justice Brennan suggested that public officials may sue for libel only if the statements in question were published with "actual malice"—"knowledge that it was false or with reckless disregard of whether it was false or not".[273] In sum, the court held that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)."[275]

While actual malice standard applies to public officials and public figures,[276] in Philadelphia Newspapers v. Hepps (1988),[277] the Court found that, with regard to private individuals, the First Amendment does "not necessarily force any change in at least some features of the common-law landscape".[278] In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)[279] the Court ruled that "actual malice" need not be shown in cases involving private individuals, holding that "[i]n light of the reduced constitutional value of speech involving no matters of public concern ... the state interest adequately supports awards of presumed and punitive damages—even absent a showing of 'actual malice'."[280][281] In Gertz v. Robert Welch, Inc. (1974), the Court ruled that a private individual had to prove malice only to be awarded punitive damages, not actual damages.[282][283] In Hustler Magazine v. Falwell (1988),[284] the Court extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected parody, in this case a fake advertisement in Hustler suggesting that evangelist Jerry Falwell's first sexual experience had been with his mother in an outhouse. Since Falwell was a public figure, the Court ruled that "importance of the free flow of ideas and opinions on matters of public interest and concern" was the paramount concern, and reversed the judgement Falwell had won against Hustler for emotional distress.[285]

In Milkovich v. Lorain Journal Co. (1990),[286] the Court ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled "opinion", but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.[287] Nonetheless, it has been argued that Milkovich and other cases effectively provide for an opinion privilege.[288]

Private action

Despite the common misconception that the First Amendment prohibits anyone from limiting free speech,[2] the text of the amendment prohibits only the federal government, the states and local governments from doing so.[289]

State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in Pruneyard Shopping Center v. Robins.[290] In that case, the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude such individuals.[291] However, the Court did maintain that shopping centers could impose "reasonable restrictions on expressive activity".[292] Subsequently, New Jersey, Colorado, Massachusetts and Puerto Rico courts have adopted the doctrine;[293][294] California's courts have repeatedly reaffirmed it.[295]

Freedom of the press

Further information: Freedom of the press in the United States

Источник: https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution

The First Amendment is literally the first line of defense against the abuse of power by government. What might not be clear, however, is how exactly the amendment plays into business and the corporate world. To talk about that, we spoke with Shanlon Wu, former federal prosecutor and partner at Wu, Grohovsky, & Whipple; Thomas Clare, specialist in complex business disputes and reputation attacks and partner at Clare Locke; and Richard Levick, show regular, chairman and CEO of Levick, a public relations firm that specializes in crisis communications for business and government entities.

ABERMAN: Let’s begin with: what is the First Amendment?

CLARE: Well, let’s start with the text of it. The First Amendment says Congress shall make no the 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 the address of grievances.

So, cutting through all that legal sounding stuff, this is the the First Amendment to the Bill of Rights, and it defines the rights of the people to express themselves, to have a free press, and limits the government’s ability to restrict freedom of speech, freedom of religion, and freedom of expression, more generally.

ABERMAN: For Americans, everyone talks about freedom of speech. Is this why the First Amendment is so critical? Shan, I know you spend a lot of time thinking about this on college campuses. I know, I teach on a college campus, people talk about the First Amendment all the time. Do they really understand what the heck they’re talking about?

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WU: I really don’t think so. There’s a huge debate on college campuses about the First Amendment, and how it intersects with this notion of safe spaces. And you would think, on a college campus, and I hear this a lot with faculty members and the administration, I’m on the board of trustees at Sarah Lawrence College, there’s a concern that there should be a free exchange of ideas, and therefore people should speak their minds and apply critical thinking to it.

But there’s also a counter-current right now, which is that there’s a big concern that certain kinds of words may offend people, may trigger certain traumas. So, they’ve tried to create this concept on campuses of the safe space, where you’re going to be sensitive to the words. So, there’s a big collision going on on the campuses, which is, how can you be respectful of people’s feelings and their experience as minorities, people of color, and at the same time, you want to foster the free exchange of ideas. So, there’s been a lot of collision there, a lot of adversarial positions being taken, so that’s a big issue on the campuses.

ABERMAN: Now, it’s interesting, Shan, thinking about what you just said, and what Tom said a minute ago. Tom, you framed the First Amendment, it’s not that I should be free of you saying something that upsets me, it’s that I should be free of the government putting constraints on my ability to express my free speech, right?

CLARE: Well, that that’s exactly right. I mean, we look at the text of it, it starts with: Congress shall make no law abridging those freedoms. And that’s the way the First Amendment is framed. I think the way that people understand it, though, is different, and it leads to these sorts of conflicts, because people will invoke the First Amendment, and their right to free speech, to support all sorts of things that aren’t necessarily really First Amendment issues. It’s really just, I want to be able to say what I want, and I don’t want you to be able to offend me with the things that you say.

ABERMAN: Richard, I’m going to bring you into the conversation, because you spend your life helping businesses and countries express themselves, often in ways that are going to upset people. How do you react, as a business person, when somebody says, well, I’ve got my First Amendment right to my opinion? How do you manage mine field of free speech?

LEVICK: You know, I think it’s a lot different now than it was before. One is, we’re traveling all over the world. So, obviously, the First Amendment only applies to these United States. But I think most people define, in this country, to find the First Amendment as protecting whatever it is that I say, but not speech that I don’t like, and that I think is an absolutely an opposite of the Jeffersonian ideal of the First Amendment, which is the marketplace of ideas.

One of the concerns that we have right now is that the way in which Donald Trump acts is so intimidating to at least raise, theoretically, if not legally, questions of prior restraint. It certainly feels that the press, he’s trying to intimidate the press from doing its job. He’s trying to intimidate individuals, at times, from having their communications. And although he tries to have it both ways, at once the President of the United States but at the other time simply tweeting on his own personal phone, it raises, I think, questions of fear in this transparent age that most of us have not had to deal with since the McCarthy era.

ABERMAN: Well, let’s expand that a little bit, because I think, and certainly one of the reasons why I wanted have you in the studio is that I’m pretty concerned that a president should be talking about exercising a restriction on private businesses like Facebook, Google, or others, their speech. I find that troubling, knowing what I know about the First Amendment.

Shan, turning to you and the university example, from my experience, teaching, that people who have right wing ideology often find campuses really hard places to be. I’ve been told that they feel unwelcome, I’ve had to be very mindful of this. You talk about safe speech in the classroom, I find when I teach, I need to be mindful of being inclusive about about all types of ideologies, because otherwise I offend. It seems like it’s just that lots of people are feeling like they want to impose their way of thinking by using this First Amendment.

Where does freedom end? Does my right to say what I want end when I punch you in the nose? What are the guideposts we’re supposed to use in this society?

WU: Yeah, I think that’s a really hard question to answer, particularly on college campuses, but I can tell you that the feeling is that there is a conflation of safe spaces, and hate speech, and free speech, and that’s the question that is really hard for me, as a lawyer, to often answer. Because for example, we have hate crimes, and actually, it’s really interesting.

When I was a prosecutor in D.C., they often did not like to charge anything as a hate crime, even when it was obviously a hate crime, because they were worried about having to prove the hate aspect of it, in terms of the First Amendment constriction. So, I think that’s something I’d be curious as to your views, as to where the line comes between hate speech and the right to speech?

CLARE: Right. Well, I think that’s a really insightful point, and I think one of the things that we’ve seen in both legal circles and in the way people talk about it colloquially, is this notion of a hate crime, or hate speech. And I think, just as you said, historically, people were reluctant to attach that label, or it was reserved for only the most extreme of things that had a clearly racial component to it. Now, I think the pendulum has swung, on college campuses and elsewhere, just in the way we talk about things, as dramatically the other direction, where now everything is a hate crime.

Everything is a hate speech, if it’s something that I don’t agree with, and that label has lost some of its meaning, and I actually think that that’s a real detriment to our society. Because there ought to be some sort of an elevated classification of speech for things that truly are motivated by hate. But it’s become so overused, now, in our common parlance, that I think it’s lost its meaning, and especially in today’s political arena, where we have a lot of overheated rhetoric that really doesn’t apply to what’s actually being said.

ABERMAN: I wonder if some of it is, to be blunt, that there’s money to be made in outrage these days, and the media may have, speaking to somebody who has been in the media for years, a place where it’s great to get clicks. It’s great to get people to follow. I mean, are we basically falling into this trap where we’re fanning outrage, and losing the ability to actually regulate society?

LEVICK: We have books and media selling at all time highs. These are stone age media, which are at an all time high, why? Because just like NASCAR wouldn’t exist without the accidents, we would call it traffic, the same is true for challenges without adversaries. We are addicted to the battle of Donald Trump, whether we are Donald Trump supporters or Donald Trump opponents. It is the accident nature of it. The conflict. And we have now conflated California and Hollywood with Washington and politics, as if entertainment and reality television are how one runs a powerful country.

ABERMAN: I don’t disagree with any of that, but I don’t really think that, if we limit this issue just to Donald Trump, we’re missing the point.

LEVICK: Absolutely.

ABERMAN: The point, as I see it, is that you can’t have freedom unless you understand what freedom means. And right now, I think a lot of people have confused it.

LEVICK: Jonathan, the First Amendment is not a fickle mistress. The First Amendment is not outcome determinative. That is, that we can no more oppose speech we don’t like, than only encourage speech that we do. And I think both the left and the right, whether we look at Donald Trump, or we look at the Me Too movement, that is often not interested in the accused being able to defend themselves, and in fact call it harassing speech, or hate speech, not necessarily always interested in due process or the statute of limitations. And I know I will probably be criticized for saying this, but the First Amendment is something that is, while not absolute, is supposed to be applied blindly as justice.

ABERMAN: I asked that we spend a little time thinking about communicating the rules of the road in this new world. It strikes me, as we come back into the conversation, we live in a really interesting moment in time where so many of the channels that are being used for communication of speech are privately owned or publicly held for-profit businesses. They’re not regulated by the Federal Communications Commission. There’s no Fairness Doctrine, but yet they become almost utilities. Tom, I’ll start with you. What’s a Facebook or Google supposed to do in the current environment, with respect to First Amendment speech?

CLARE: Well, they’re in a tricky spot, because there is, of course, all this public pressure on them to say, how can you allow this content on your site, whether it’s hateful speech, or whether it’s fake news, or external interference with our elections. There’s a lot of external pressure on them to be doing something. On the other hand, they tout themselves as being these neutral platforms, as literally being the modern-day equivalent of the town square, where people can come and exchange free ideas without regard to identity, and having anonymous speech and the value of all of those things.

And Congress has actually given those private companies immunity from defamation liability, because they purport to be the town square. The real challenge exists now because they’re wading into the territory of policing speech. They all have terms and conditions. We all know because we click on them, and say I agree to be bound by Facebook’s terms and conditions in order to have an account. And that says that I can’t post all these categories of speech on there.

But there are people at these private companies that are making decisions about what what qualifies as hate speech, or what qualifies as harassment, or what qualifies as defamation, and they’re calling balls and strikes on what content goes up or down, and those people are exercising that discretion in a way that is getting them in trouble, and getting them a lot of public notice.

ABERMAN: But, and this is where I think lot of the confusion about the First Amendment arises, none of that, as a private business, has anything to do with the the First Amendment. You can regulate speech however you want as a private business, right?

CLARE: Absolutely. And I think that’s something that’s very commonly understood. And a lot of the outrage you hear from people, including about data privacy issues, is, you don’t have a constitutional right to have a Facebook account. You know, this is a private business that is providing a service, albeit a very broad one. But if you’re going sign up for Facebook, if you’re going to post things on Facebook, if you’re going to participate in that, you’re agreeing, basically, to a contract with these private companies, and their terms of service.

ABERMAN: So if anything, this is a monopolization issue, this isn’t a First Amendment issue. And I’m not saying these are monopolies, but…

WU: I mean, I guess what I’m unclear on is, clearly the government’s interested. They’re holding hearings. They are coming down on Facebook, Twitter, etc, for not only allowing controversial people, who we often think of as hate speakers, but also for allowing all this automated, fake account activity, which may have been the Russians, or someone else, trying to influence elections. So, the government is definitely interested in this issue, and you know, possibly as they get more interested, then that government action perhaps does start to infringe the First Amendment.

LEVICK: There are legitimate and illegitimate reasons to be interested in social media. The accusations that Google or Facebook, or other social media, are biased against the right, is something that, personally, I have a very hard time swallowing, in large part because it was used, initially by the Reagan administration, as this extremely effective argument. Because anything that is than critical, you can dismiss as, well, of course, what would you expect from the New York Times, the Washington Post, Wall Street Journal, or others?

We have to get to a point where we, once again, are at least considering information that’s not necessarily consistent with our preformed arguments. I think, back in the eighties, Mark Hertsgaard did a study of, in fact, this alleged left wing bias in media, going back nearly two hundred years, and found it, in fact, not to be true, and I think we’ll find the same thing today. But the challenges are really fundamental. And that is a question I ask often of myself, is, does our constitution, a living, breathing document, does it keep pace with technology, which is raising issues far beyond what we have the capacity certainly to legislate, but maybe even govern?

ABERMAN: Regulation of speech. There’s another issue, and Thomas, you touched on it briefly when you last answered, defamation. There are limitations on Alex Jones’s ability to talk about Comet Pizza, or somebody’s ability to talk about something in a disparaging way. Where are the limits? And that’s not First Amendment, what is that?

CLARE: So, the First Amendment does not protect defamatory speech. That’s the legal issue, there. But defamation is a very defined class of speech, it’s a false statement of fact about a person, that is published to someone else, that causes reputational harm, and done with a certain culpable mindset, meaning you, under New York times versus Sullivan, that you either knew it was false when you said it, or you recklessly disregard the truth or falsity when you said it.

So, it’s basically a lie that you told about somebody, that you knew, or should have known, was false. I spend a lot of my practice, when clients come to me and say, I’ve been defamed, explaining to them the point that Richard made earlier. There’s a big difference between defamation and speech you don’t like. And I think for your audience, and for this discussion, the one big divide that’s important for people to understand is, defamation only applies to false statements of fact.

It does not apply to statements of opinion. You can make the most outrageous opinions that you want, publish them as broadly as you want, and have zero liability for defamation. But once you start making up facts about someone, in order to support your argument, that’s when you get into a situation where defamation is at play.

LEVICK: You know, one thing, Jonathan, I would add is, and I think it’s important for us to remember, the First Amendment, as we interpret it today, is largely the evolution of an accidental train ride in a snowstorm a century ago between Justice Learned Hand and Supreme Court Justice Frankfurter. Learned Hand, in a lower court, had a much more progressive view of the First Amendment.

The First Amendment comes to us, as we believe it today and accept it today, in large part because of the Wobblies, many of whom were beaten or killed in the early Union days, anti-World War One protests, both of which were extremely unpopular speech, but it was through those initially unpopular movements that led to our appreciation as the most important speech to protect is in fact, the unpopular.

WU: One maybe counterpoint to that, and to your point about whether the Constitution has really kept up with technology. It seems to me that it clearly hasn’t. I mean, there’s the ability now to create tens of millions of fake accounts, putting out a particular viewpoint. And if you’re just leaving it to the marketplace of ideas for that to balance out, it’s no longer a fair competition. I mean, a real human being can’t possibly speak out against ten million bots, tweetings five hundred times a day. And so, that, for me, raises the question that you do need some legislation. You may need some government action or oversight.

ABERMAN: That’s kind of where I’m struggling towards as well, which is, it seems to me, we almost need to have, I don’t know how you’d do it, but an objective truths police. Defamation, is it possible to have fraud on the marketplace of ideas?

LEVICK This show now being broadcast by George Orwell…

ABERMAN: Seriously! How do you solve this problem without… Was it Moynahan who used to say you need to have shared facts? You can’t have facts without truth.

LEVICK: I think that both gentlemen here have addressed a critical issue, which is, free speech does not attach to robotics, through the bots, and two, there are limits on speech.

CLARE: One of the things that I see, and I’ve seen in my practice over the twenty years that I’ve been doing defamation work, is this erosion of trust in the media, and it’s not just the professional media, but it’s the erosion of trust in things people read online, or hear on television. And I do believe that there is a correlation between that erosion of trust, and the desire to make free speech consequence-free, that there’s no consequence.

The courts have spent a lot of time eroding accountability principles for speakers. And that is, generally, a good thing in a free society, that there isn’t severe consequences for people who utter speech. But given the fact that now there’s more irresponsible speech, there’s more falsehoods, there’s more robotics out there. There’s also, courts have struggled to keep up with things like the internet, and how do you deal with a hyperlink, and how do you deal with a retweet? How do these concepts apply and law that was crafted in the 1700s, the 1800s, the 1950s, when a lot of this law came out?

I think that is what has led to the erosion of trust in the media. Just one quick anecdote that I think would be interesting to your listeners: a year ago, we were the counsel for the University of Virginia administrator in the Rolling Stone gang rape defamation case, which is one of the last defamation cases to go to trial. We were picking a jury of a hundred people in the room for the jury selection process, and we asked the question, how many of you distrust the media? Ninety-six hands went up in the morning. Ninety-eight hands went up in the afternoon. And I think that is something we see all around the country, and it’s a function, I think, of a lot of the failures to keep up with the modern times.

WU: I think, to go back to the college campus issue: that, to me, is over dependence on the media. A 1960s kind of notion that Walter Cronkite delivers the truth to us, and I think that, on the college campuses, and even in middle school and grade school, we need to teach our students, and relearn ourselves, how we can be critical in terms of our analysis of this. And one doesn’t have to just say, all the media is always right, or they’re always wrong, you should be able to impose your own standards on that. And that will hold them more accountable, overall.

ABERMAN: I think that’s a great place, unfortunately, I have to end the conversation. Shan, that was a wonderful way to sum it up. I come away from this conversation a lot better informed about what the First Amendment is, but also realizing the enormity of how we’re going to deal with speech in the world that we now live in. Gentlemen, thank you very much. You’re listening to Shan Wu, Tom Clare, and Richard Levick. Gentlemen, thanks for joining on What’s Working in Washington.

Источник: https://federalnewsnetwork.com/whats-working-washington/2018/09/business-and-the-first-amendment/

Gutierrez: The First Amendment is misrepresented

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.

Above is the entire text of the First Amendment to the United States Constitution. It was added to the Constitution as part of the Bill of Rights in 1791, in order to secure the rights of the people, rather than set up the new nation’s government.

The First Amendment — the right to free speech, free assembly and freedom of the press — hangs in The Daily’s newsroom. However, I have seen this amendment interpreted incorrectly, especially in recent years.

Not all speech is covered by free speech. Some speech is unprotected by the First Amendment and may be entirely prohibited. As of 2014, there are three unprotected categories: obscenity, child pornography and “fighting words” or “true threats.” Of these three, obscenity is the most controversial, as it was denied First Amendment protection without consideration for harm done. In U.S. v. Stevens, the Supreme Court implied that they are unlikely to add additional unprotected categories, but that it’s possible that they will in future cases.

Outside of unprotected speech, there are still restrictions on free speech. Prior restraint is one method of restriction, and it takes two forms. A law can require that speech be submitted to a body for a license to distribute it, such as movies, or a court can issue a temporary restraining order against specific forms of speech, such as publishing the Pentagon Papers.

Access to certain spaces, although they belong to the U.S. government, is not guaranteed by the First Amendment. For example, because the space outside of a post office is not a traditional public forum, and blocking it is disruptive of the Postal Service’s operations, soliciting in front of a post office is not protected by the First Amendment.

Free speech has also been limited when it threatens one’s safety. In numerous protests outside women’s health or abortion clinics, the Supreme Court found that entrances must have a certain buffer zone to allow clinic patients and workers to safely access the services.

Clearly, the First Amendment has its limits. Still, some people use the First Amendment as a defense from people expressing opposing opinions, usually in the form of protest. As recently as this Tuesday, when Jeff Sessions came to campus, some students argued that protests against Sessions’s presence were impinging on the free speech of other students. However, this is not what the First Amendment means. The First Amendment exists to protect the American people from the government, specifically Congress.

The First Amendment does not protect people from private businesses. This is why companies can restrict what employees say at work, such as when James Damore lost his job was for opposing the company’s diversity initiatives by arguing for biological differences between men and women.

The First Amendment does not exist to protect people from other individuals. If someone expresses an opinion, whether it be about the government or their favorite tv show, that person is protected from retribution by the federal government, but another individual is free to disagree and debate.

The only limit on individual speech that can be tried by another individual is libel. Libel refers specifically to facts that can be proved untrue. Libel laws do not penalize true statements that damage reputations, and it is much harder to apply libel laws to public figures, such as celebrities or politicians.

In my experience, the people who most often complain to me that their First Amendment rights are being violated are those who are seeking to oppress another group. If your First Amendment rights allow you to say heinous things about minorities, my First Amendment rights allow me to say that you are an uncaring person. Neither of us can be punished by the government for expressing these opinions, but we can be socially punished by others who disagree with us.

The Constitution exists to protect us from potential government overreach. It is not a social contract that impacts how we interact with one another. Core beliefs and the way people choose to express them are an elemental part of how people choose friends and collaborators To imply that the First Amendment means speech has no consequences is irresponsible and simply not what the Bill of Rights exists to do.

Pallas Gutierrez is a Communication sophomore. They can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.

Источник: https://dailynorthwestern.com/2019/11/07/opinion/gutierrez-the-first-amendment-is-misrepresented/

This text is taken directly from the Human Rights Act.

Article 10 of the Human Rights Act: Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Источник: https://www.equalityhumanrights.com/en/human-rights-act/article-10-freedom-expression
what rights are included in the 1st amendment

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