First Amendment Introduction

The First Amendment

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. 

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Madison’s original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. 

One proposed amendment said “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, one of the great bulwarks of liberty, shall be inviolable.” 

The other proposed amendment of Madison read: “No state shall violate the equal rights of conscience, or of the press.” 

Congress did not support Madison’s efforts to apply free speech protections against the states, even though Madison called that amendment the “most valuable amendment on the whole list.”  (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)

madison
James Madison, drafter of the First Amendment.

Just seven years after adoption of the First Amendment, Congress passed the Sedition Act of 1798.  The Act was enforced against Republican papers in an effort to keep Jefferson’s party from defeating the Federalists in the 1800 election.  Jefferson won anyway, and the Sedition Act expired by its own terms in 1801, without ever being tested by the Supreme Court.  The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press.

Although a few First Amendment cases, often involving obscenity, were decided by the federal courts in the 1800s, it was not until World War I that the Supreme Court really began to develop the jurisprudence that will be our study.

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Values Served by the Protecting of Free Speech

  1. The Discovery of Truth

This value was first suggested by Milton, who first suggested that when truth and falsehood are allowed to freely grapple, truth will win out.

  1. Facilitating Participation by Citizens in Political Decision-Making

It has been suggested that citizens will not make wise and informed choices in elections if candidates and proponents of certain policies are restricted in their ability to communicate positions.

  1. Creating a More Adaptable and Stable Community (The “Safety Valve” Function)

It has been suggested that a society in which angry and alienated citizens are allowed to speak their mind–“vent”–will be more stable, as people will be less likely to resort to violence.  It has also been pointed out that allowing the alienated and discontented to speak freely enables government to better monitor potentially dangerous groups who would otherwise act more clandestinely.

  1. Assuring Individual Self-Fulfillment

Free speech enables individuals to express themselves, create and identify–and, in the process perhaps, find kindred spirits.  Freedom of speech thus becomes an aspect of human dignity.

  1. Checking Abuse of Governmental Power

As Watergate, Irangate, Clintongate (and all the other “gates”) demonstrate, freedom of the press enables citizens to learn about abuses of power–and then do something about the abuse at the ballot box, if they feel so moved.

  1. Promoting Tolerance

It has been argued that freedom of speech, especially through our  practice of extending protection to speech that we find hateful or personally upsetting, teaches us to become more tolerant in other aspects of life–and that a more tolerant society is a better society.

  1. Creating a More Robust and Interesting Community

A community in which free speech is valued and protected is likely to be a more energized, creative society as its citizens actively fulfill themselves in many diverse and interesting ways.

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As described by the First Amendment Center:

The First Amendment was written because at America’s inception, citizens demanded a guarantee of their basic freedoms.

Our blueprint for personal freedom and the hallmark of an open society, the First Amendment protects freedom of speech, press, religion, assembly and petition.

Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change.

When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment.

The Bill of Rights — the first 10 amendments to the Constitution — went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government.

The First Amendment ensures that if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or force citizens to confess by word or act their faith therein,” as Justice Robert Jackson wrote in the 1943 case West Virginia v. Barnette.

And as Justice William Brennan wrote in New York Times Co. v. Sullivan in 1964, the First Amendment provides that debate on public issues … [should be] … uninhibited, robust, and wide-open.”

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What is “speech”?

The First Amendment protects against abridgments of the “freedom of speech.”  Although in many cases the question of whether speech has been regulated is not in doubt, as with most restrictions on oral or written communication, in some it is an important threshold issue for courts to consider.  If the regulated activity is not “speech,” then it is not protected by the First Amendment and there is no need to extend the constitutional analysis further.

In 1968, the Court considered the argument of David Paul O’Brien that he had a First Amendment right to burn his draft card on the steps of a Boston courthouse as a form of protesting U.S. involvement in the Vietnam War.  The Court agreed that O’Brien was engaged in an expressive activity that triggered a First Amendment analysis.  The Court noted, however, that O’Brien was punished for his “conduct” (the burning of the card) and not for what he was trying to say about the war.  The Court offered in O’Brien a test for analyzing cases in which both speech and conduct elements are present: 

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government;

if it furthers an important or substantial governmental interest;

if the governmental interest is unrelated to the suppression of free expression;

and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Gary Johnson being arrested after burning a flag.

The O’Brien test has been used by the Court in a series of subsequent cases.  In Texas v Johnson, the Supreme Court considered another protest of U. S. policy, this time in the case of a man who burned a flag at a Republican National Convention.  In a controversial 5 to 4 decision, the Court overturned Johnson’s conviction for flag burning, concluding the burning was “sufficiently imbued with elements of communication to implicate the First Amendment” and was, in fact, protected speech under the First Amendment.  Buckley v Valeo raised the issue of whether money (in the form of campaign donations or expenditures) can be considered a form of speech.  The Court concluded that it could, noting that modern campaigning is impossible without financial resources.

Cases for Class

New York Times Co. v. Sullivan

O’Brien v United States (1968)

Buckley v Valeo (1976)

Texas v Johnson (1989)