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First Amendment to the United States Constitution

The First Amendment to the United States Constitution is part of the United States Bill of Rights that expressly prohibits the United States Congress from making laws "respecting an establishment of religion" or that prohibit the free exercise of religion, laws that infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, or limit the right to petition the government for a redress of grievances.

Although the First Amendment explicitly prohibits only the named rights from being abridged by laws made by the Congress, the Supreme Court has interpreted it as applying more broadly. As the first sentence in the body of the Constitution reserves all legislative authority to the Congress, the courts have held that the First Amendment's terms also extend to the executive and judicial branches. Additionally, in the 20th century the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state.

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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.

Background

Opposition to the ratification of the Constitution was, in part, based on the Constitution's lack of adequate guarantees for civil liberties. The First Amendment, along with the rest of the Bill of Rights, was adopted on December 15, 1791 in order to provide such guarantees.

Establishment of religion

The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, under the incorporation doctrine, certain selected provisions were applied to states. It was not, however, until the middle and later years of the twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by state governments. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, , Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion".

Free exercise of religion

In Sherbert v. Verner, , the Warren Court applied the strict scrutiny standard of review to this clause, holding that a state must show a compelling interest in restricting religion-related activities. In Employment Division v. Smith, , the Supreme Court retreated from this standard, permitting governmental actions that were neutral regarding religion. The Congress attempted to restore this standard by passing the Religious Freedom Restoration Act, but in City of Boerne v. Flores, , the Supreme Court held that such an attempt was unconstitutional regarding state and local government actions (though permissible regarding federal actions).

Freedom of speech

Sedition

The Supreme Court never ruled on the constitutionality of any federal law in regards to the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts of 1798 and even the leading critics of the law, Thomas Jefferson and James Madison, argued for the laws' unconstitutionality on the basis of the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment)

After World War I, several cases involving laws limiting speech came before the Supreme Court. 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." Under the Act, there were over two thousand prosecutions. For instance, one filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

In Schenck v. United States, , the Supreme Court was first requested to strike down a law violating the Free Speech Clause. The case involved Charles Schenck, who had, during the war, published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck's conviction for violating the Espionage Act. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested 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."

The "clear and present danger" test of Schenck was extended in Debs v. United States, , again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft.

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York, . Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." Lawmakers were given the freedom to decide which speech would constitute a danger.

Freedom of speech was influenced by anti-communism during the Cold War. In 1940, the Congress enacted the Smith Act. The Smith Act made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in Dennis v. United States . The Court upheld the law in 1951 by a 6-2 vote (Justice Tom C. Clark did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the words "clear and present danger." Thus, even though there was no immediate danger posed by the Communist Party's ideas, the Court allowed the Congress to restrict the Communist Party's speech.

Dennis has never been explicitly overruled by the Court, but subsequent decisions have greatly narrowed its place within First Amendment jurisprudence. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States, . The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas". Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.

War protests

The Warren Court expanded free speech protections in the 1960s, though there were exceptions. In 1968, the Court upheld a law prohibiting the mutilation of draft cards in United States v. O'Brien, , because the Court felt that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system. In contrast, in Cohen v. California, , the court found that a person could not be punished for wearing, in the corridors of the Los Angeles County courthouse, a jacket reading "Fuck the Draft".

In Tinker v. Des Moines Independent Community School District, , the Supreme Court ruled that free speech rights extended to students in school. The case involved several students who were punished for wearing black arm-bands to protest the Vietnam War. The Supreme Court ruled that the school could not restrict symbolic speech that did not cause undue interruptions of school activities. Justice Abe Fortas wrote, "schools 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." However, in Bethel School District v. Fraser, , the Court held a student could be punished for his speech before a public assembly.

Also in 1969, the Court decided the landmark Brandenburg v. Ohio, , which overruled Whitney v. California, , a case in which a woman was imprisoned for aiding the Communist Party. Brandenburg effectively swept away Dennis as well, casting the right to speak freely 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 permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Anonymous speech

In Talley v. California, , the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets.

Flag desecration

The divisive issue of flag desecration as a form of protest came before the Supreme Court in Texas v. Johnson, . The Supreme Court reversed the conviction of Gregory Lee Johnson for burning the flag by a 5-4 vote. Justice William J. Brennan, Jr. asserted 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." Many Congressmen criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court. Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman, . Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Desecration Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. In 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority. In 2006, another attempt fell one vote short.

Obscenity

The federal government and the states have long been permitted to restrict obscenity or pornography. While obscenity generally has no protection under the First Amendment, pornography is subject to little regulation. The exact definition of obscenity and pornography, however, has changed over time.

When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin. The Hicklin standard 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." The Court ruled in Roth v. United States, 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."

Justice Potter Stewart, in Jacobellis v. Ohio, , famously stated that, although he could not precisely define pornography, "I know it when I see it."

The Roth test was expanded when the Court decided Miller v. California, . Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber, . The Court thought that the government's interest in protecting children from abuse was paramount.

Yet, personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, , Justice Thurgood Marshall wrote, "if 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." It is not, however, unconstitutional 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, 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..." it was overly broad and unconstitutional under the First Amendment. Justice Anthony M. Kennedy wrote: "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."

In United States v. Williams, 553 U.S. ___ (2008), by a vote of 7-2, the Supreme Court upheld the PROTECT Act of 2003. The Court held 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.

Libel, slander, and private action

American tort liability for defamatory speech or publications—slander and libel—traces its origins to English law. The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan . The New York Times had published an advertisement 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 on the grounds that the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice."

The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.

In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, , the Supreme Court ruled that a Greenbelt News Review article, which quoted a visitor to a city council meeting who characterized Bresler's aggressive stance in negotiating with the city as "blackmail", was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., obviously an opinion).

The Supreme Court ruled in Gertz v. Robert Welch, Inc. , opinions could not be considered defamatory. It is thus permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to falsely declare that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact.

More recently, in Milkovich v. Lorain Journal Co., , the Supreme Court backed off from the protection from "opinion" announced in Gertz. The court in Milkovich specifically held that there is no wholesale exemption 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.

Hustler Magazine v. Falwell, extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected a parodic caricature. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard whether or not it was true."

Ordinarily, the First Amendment only applies to prohibit direct government censorship. The protection from libel suits recognizes that the power of the state is needed to enforce a libel judgment between private persons. The Supreme Court's scrutiny of defamation suits is thus sometimes considered part of a broader trend in U.S. jurisprudence away from the strict state action requirement, and into the application of First Amendment principles when private actors invoke state power.

Likewise, the Noerr-Pennington doctrine is a rule of law that often prohibits the application of antitrust law to statements made by competitors before public bodies: a monopolist may freely go before the city council and urge the denial of its competitor's building permit without being subject to Sherman Act liability. This principle is being applied to litigation outside the antitrust context, including state tort suits for intentional interference with business relations and SLAPP Suits.

The constitutions of most of the several states also provide free speech protections analogous to that of the U.S. Constitution. Some states, such as California, have treated their local constitutional protections as being more expansive than that of the U.S. Constitution. California's Pruneyard doctrine, prohibits private 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 political speakers and petition-gatherers.

The Pruneyard doctrine privileges protesters, who would otherwise be trespassers, from being ejected from the property, as would other trespassers. How does such a privilege against enforcement of private property rights arise from a state constitutional provision that protects individuals from government censorship? Moreover, the doctrine deprives the property owner of one of their rights, as well as forcing them to allow their premises to become a forum for speech for which they do not approve. Arguably, this violates the free speech rights afforded by the U.S. Constitution, as well as the protection to property rights under the Takings Clause. However, on appeal to the U.S. Supreme Court, the mall owner's arguments that the state constitution's protection of trespassers interfered both of these arguments were rejected.

Although the U.S. Supreme Court found the California court's expansion of its own constitutional provisions not to have violated the U.S. Constitution, it has never interpreted the First Amendment as having the same power to alter private property rights, or provide any other protection against purely private action. When considering private authority figures (such as a child's parents or an employee's employer), Constitutional free speech provides no protection. A private authority figure may reserve the right to censor their subordinate's speech, or discriminate on the basis of speech, without any legal consequences. For example, per the at will employment doctrine, an employee may be fired from their occupation for speaking out against a politician that the employer likes.

Political speech

The Federal Election Campaign Act of 1971 and related laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Supreme Court considered the constitutionality of the Act in Buckley v. Valeo, . The Court affirmed some parts of the Act and rejected others. The Court concluded that limits on campaign contributions "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." At the same time, the Court overturned the expenditure limits, which it found imposed "substantial restraints on the quantity of political speech."

Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission, . The case centered on the Bipartisan Campaign Reform Act of 2002, a law that introduced several 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 finance certain election-related advertisements. At the same time, 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, further stating that a "provision place[d] an unconstitutional burden on the parties' right to make unlimited independent expenditures." The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on the precedent on the Tinker case. In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary/caucus or an election. In Davis v. Federal Election Commission, 554 U. S. ____ (2008), 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 own money violated the freedom of speech of the self-financing candidate.

Free speech zones are areas set aside in public places for political activists to exercise their right of free speech as an exercise of what is commonly called "TPM" or "time, place manner" regulation of speech. Free speech zones are set up by the Secret Service who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones prior to and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespassing, disorderly conduct and resisting arrest. In 2003, a seldom-used federal law was brought up that says that "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" is a crime.

Involuntary commitment

A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violates the right of freedom of speech of such individuals.

The First Amendment implications of involuntary administration of psychotropic medication have also been questioned. Though the United States District Court for the District of Massachusetts, in Mills v. Rogers, found that "whatever powers the Constitution has granted our government, involuntary mind control is not one of them," this finding was not of precedential value, and the Supreme Court ruling was essentially inconclusive. In Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), the United States District Court for the District of New Jersey held that an involuntarily committed patient has the right to refuse medication.

In the landmark decision O'Connor v. Donaldson, , the Supreme Court ruled that a patient cannot be involuntarily committed without due process. The mental health bar, spearheaded by the American Civil Liberties Union (ACLU), has interpreted this decision to mean it is unconstitutional to commit a person for treatment who is not imminently a danger to himself or others and is capable to a minimal degree of surviving on his own. This interpretation has hampered efforts to implement changes in commitment laws through out the United States, as most states insist the person meet the "imminent danger" standard, accepting the ACLU's interpretation of the Donaldson case.

Memoirs of convicted criminals

In some states, there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit. 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, . That statute did not outlaw 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 period of 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.

Freedom of the press

Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law. Restrictions, however, have been struck down if they are aimed at the political message or content of newspapers.

In Branzburg v. Hayes, , the Court placed limits on the ability of a member of the press to refuse a subpoena from a grand jury based on First Amendment claims. The issue decided in the case was whether a reporter could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the contention that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment." The 5-4 decision was that such a protection was not provided by the First Amendment.

Taxation of the press

State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. , the Court invalidated a state tax on newspaper advertising revenues. Similarly, some taxes that give preferential treatment to the press have been struck down. In 1987, for instance, the Court invalidated an Arkansas law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content.

In Leathers v. Medlock, , the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."

Content regulation

The courts have rarely treated content-based regulation of the press with any sympathy. In Miami Herald Publishing Co. v. Tornillo, , the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government may not force newspapers to publish that which they do not desire to publish.

Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. The Supreme Court, however, has ruled that the problem of scarcity does not permit the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.

In Federal Communications Commission v. Pacifica Foundation, , the Supreme Court upheld the authority of the FCC to restrict the use of profane language in broadcasting.

Petition and assembly

The right to petition the government has been interpreted as extending to petitions of all three branches: the Congress, the executive and the judiciary. The Supreme Court has interpreted "redress of grievances" broadly; thus, it is possible for one to request the government to exercise its powers in furtherance of the general public good. However, a few times Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the "Gag Rule," barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was in any event abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws (see above) were punished; again, the Supreme Court did not rule on the matter.

The right of assembly was originally closely tied to the right to petition. One significant case involving the two rights was United States v. Cruikshank, . There, the Supreme Court held that citizens may "assemble for the purpose of petitioning Congress for a redress of grievances." Essentially, it was held that the right to assemble was secondary, while the right to petition was primary. Later cases, however, have expanded the meaning of the right to assembly. Hague v. CIO, , for instance, refers to the right to assemble for the "communication of views on national questions" and for "disseminating information."

International significance

Most provisions of the United States Bill of Rights are based on the English Bill of Rights (1689) and on other aspects of English law. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, while the First Amendment guarantees freedom of speech to the general populace, the English Bill of Rights only protected "freedom of speech and debates or proceedings in Parliament." The Declaration of the Rights of Man and of the Citizen, a French revolutionary document passed only weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to the First Amendment's. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom.

While the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights sometimes do so. The European Convention on Human Rights, for example, permits restrictions "in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Similarly the Indian constitution allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality.

The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of Rights, contains an equivalent guarantee.

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