20 Questions about 45 Precious Words
By Gayle Beck
It’s surprising how often issues in the news relate directly to freedoms guaranteed to us in the U.S. Constitution. So today, we’re looking more closely at the First Amendment to the Constitution.
Here’s a primer on the First Amendment, compiled by the organizers of the website 1forall.us, which aims to raise public awareness about the amendment that, as they point out, “serves everyone, regardless of faith, race, gender or political leanings.”
1. What is the First Amendment?
The First Amendment consists of the first 45 words of the Bill of Rights, ratified in December 1791, that protect the freedoms of religion, speech, press, assembly and petition. It serves as the blueprint for freedom of expression and religious liberty.
2. What is the value of the First Amendment to us and to the nation?
The First Amendment enables citizens to express their thoughts and beliefs in a free society. It allows citizens to practice whatever religion they wish — or no religion at all. Without the First Amendment, religious minorities could be persecuted, the government could establish a national religion, protesters could be silenced, the press could not criticize government and citizens could not mobilize for or against social change.
3. The First Amendment starts with the words “Congress shall make no law …” But don’t we sometimes limit First Amendment freedoms?
Yes, at times we do limit First Amendment freedoms. While the text of the First Amendment references that “Congress shall make no law,” there are some limited types of speech that do not receive free-speech protection.
Justice Oliver Wendell Holmes famously expressed this point when he wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s famous phrase means that not all forms of speech are protected.
For example, the First Amendment does not protect obscenity, child pornography, true threats, fighting words, incitement to imminent lawless action, criminal solicitation or defamation.
4. Does the First Amendment apply to private companies and organizations?
No. The First Amendment applies to the government — to protect individuals from government censorship. While the text of the First Amendment says “Congress shall make no law … abridging the freedom of speech,” it means that no federal, state or local government official can infringe on your free-speech rights. A private company is not a government or state and therefore generally is not subject to the requirements of the First Amendment.
5. How does the First Amendment protect religious liberty?
It protects religious liberty through the establishment clause and the free exercise clause. The establishment clause — “Congress shall make no law respecting an establishment of religion” — provides for separation between church and state.
The free exercise clause — “or the free exercise thereof” — means that individuals can hold whatever beliefs they wish on religion or nonreligion and to freely practice those beliefs.
6. What does the establishment clause mean?
This is a difficult question that divides legislators, educators and members of the Supreme Court. It clearly means that the government may not establish a national religion. It also means that the government may not pass a law that favors one religious sect or group over another. To many, it also means that the government may not pass a law that favors religion over nonreligion. These individuals believe that the establishment clause erects a “wall of separation” between church and state.
Many agree that the establishment clause erects a degree of separation, but they simply disagree exactly how high that wall should be. Some believe that the government can acknowledge religious influences in public life. Others believe that even “In God We Trust” on money violates the church-state separation principle. Many — including Supreme Court justices — cannot agree on the constitutionality of posting Ten Commandments displays on government property.
7. What is an example of an establishment of religion?
The U.S. Supreme Court ruled that public school teachers cannot lead their students in prayer. The Court reasoned that teachers leading students in school would place coercive pressure upon religious minorities and make it appear that the government supported a particular religion.
8. What does free exercise of religion mean under the First Amendment?
It means that people have the right to freely practice their religious faith or practice no religious faith at all. It provides absolute protection for freedom of belief and a strong degree of protection for religious conduct. People can believe whatever they wish. However, sometimes the government can step in and regulate religious practices if it has a strong enough interest — called a compelling government interest — such as the protection of children.
9. Does the First Amendment apply to schools?
Yes. The U.S. Supreme Court ruled in Tinker v. Des Moines Independent School District that students do not “shed” their free-speech rights “at the schoolhouse gate.” This means that public school students retain some level of free-expression rights, even during the school day.
10. Do students have the same level of First Amendment rights as adults?
No. The Supreme Court also said that students’ rights must be considered against the “special characteristics of the school environment.” Speech that substantially disrupts school activities, for example, is not protected by the First Amendment.
11. Is speech on the Internet entitled to as much protection as speech in more traditional media?
Yes. The U.S. Supreme Court ruled in Reno v. ACLU that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” This was an important ruling, because the government had argued that speech on the Internet could be controlled to a greater extent, just like the broadcast medium. Several civil liberties groups countered that speech on the Internet should be free and open and entitled to just as much protection as the print medium.
12. May students pray or discuss religion in public schools?
Yes, students have the right to pray and discuss religion in school. Public misperception has persisted on this topic since the U.S. Supreme Court struck down school-sponsored prayer in the early 1960s. In those decisions, the high court ruled that the establishment clause does prohibit schools from allowing or engaging in school-sponsored prayer or encouraging students to pray. But the free exercise clause protects the rights of students to pray on their own time. In fact, singling out student religious speech for punishment would indicate hostility toward religion and violate the basic First Amendment principle that the government may not punish a particular viewpoint. This does not mean that students have an unfettered right to speak on religious subjects. Students can be punished for interrupting class time for any type of speech. Also, school officials can make sure that students are not speaking to an audience that is forced to hear them, or that they are harassing others by overzealously advocating their religious beliefs.
13. Does freedom of the press mean the news media can write or say anything they want?
Unless restricted by a valid prior restraint — which is rare — the news media are free to publish any information or opinion they desire. This freedom, however, does not immunize them from liability for what they publish. A newspaper that publishes false information about a person, for example, can be sued for libel. A television station similarly can be sued if it broadcasts a story that unlawfully invades a person’s privacy. Because such liability can be staggering, most journalists strive to exercise their freedom to publish in a responsible and ethical manner.
14. Is truth a defense in libel lawsuits?
Truth is an absolute defense against libel claims, because one of the elements that must be proven in a defamation suit is falsity. If a statement is true, it cannot be false, and therefore there is no prima facie case of defamation. There are numerous jurisdictions, including Florida, that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim as long as the “gist” of the story is true.
15. What difference does it make in defamation if a person is a public official?
It makes a huge difference, because public officials and public figures have a much higher burden of proof to prove defamation than do private persons. In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials, unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then he or she generally needs to show only that the defamer was at fault — or negligent — in making the statement.
16. Why are public officials and public figures treated differently in defamation law?
The reason for the distinction between public and private figures is that public officials often have greater access to channels of communication to counteract false statements. If a celebrity is defamed, he or she can call a press conference and rebut the statement. If a private person is defamed, he or she usually doesn’t have nearly the same level of access.
17. What is indecent speech?
Indecent speech generally refers to speech that is of a sexual or vulgar nature but does not cross the line into unprotected obscenity, or even material that is “harmful to minors.” Indecent speech is protected speech for adults, but often can be regulated for minors, particularly younger minors. Under rules of the Federal Communications Commission, broadcast indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” By “contemporary community standards,” the FCC means the standard “of an average broadcast viewer or listener and not the sensibilities of any individual complainant.”
18. What is the difference between the freedom of assembly and the freedom of association?
Freedom of assembly is explicitly guaranteed in the First Amendment, securing the right of people to meet for any purpose connected with government. Freedom of association protects the activities and composition of such meetings. This right is not explicitly set out in the Constitution but is instead derived from fundamental privacy interests and the rights of speech, petition and assembly.
19. How has freedom of assembly helped society?
Freedom of assembly was the essential freedom in the women’s suffrage movement of the 1910s and the civil rights movement of the 1950s and 1960s. These protesters — often in the face of public scorn and official arrest — braved the streets and sidewalks to denounce policies and to advocate positions that placed them in direct opposition to official authorities. Freedom of assembly enables people to gather together to make a powerful statement, a statement much more potent than anyone could make as a single individual.
20. What is petitioning?
Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority, such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means. Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.