3.11 The First Amendment

First Amendment Protections

The First Amendment to the U.S. Constitution states, “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.” This amendment provides several protections that place limits on the power of government to criminalize speech, religious practices, and the ability to assemble and demonstrate peacefully.

The free speech protections of the First Amendment generally allow people to speak or write about any topic, and the First Amendment even protects symbolic speech. Symbolic speech is conduct that expresses an idea or opinion, like wearing certain clothes, accessorizing using buttons or armbands (e.g., Tinker v. Des Moines, 1969), or picketing or marching in a parade. Even symbolic hate speech, like burning a cross, may receive some First Amendment protection as symbolic speech depending on the circumstances under which such an act occurs. For example, in Texas v. Johnson (1989), the Court held that the law infringed upon people’s right to express their dissatisfaction with the government through the symbolic speech embodied in the action of burning the flag. In light of the First Amendment, it is rare for a law to ban any type of protected speech or expression (Owen, et. al, 2019).

As with all constitutional rights, there are limits to free speech, and certain categories of speech receive no First Amendment protection, like libel and slander, falsehoods that damage another person’s reputation, obscenity, and the use of words “directed to inciting or producing imminent lawless action” (Brandenburg v. Ohio, 1969, p. 447). Moreover, limits may be placed on the time, place, and manner in which the rights to free speech are exercised in order to prevent fires, health hazards, obstructions or occupations of public buildings, or traffic problems. For example, no one has the right to “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech” (Cox v. Louisiana, 1965, p. 554) or yell “fire” in a crowded movie theater (Owen, et. al, 2019).

The First Amendment also generally forbids censorship or other restraints on speech or expression by the media. There are, however, limits to this protection, like in cases involving defamation or obscenity. For example, the FCC can bar the broadcast of profane language and sexually explicit material on public airways that may be accessed by children. In addition, dissemination of information may be prohibited if it concerns a matter of national security. And, as with free speech, the time, place, and manner in which broadcasts are made can be limited (Owen, et. al, 2019).

The First Amendment contains two clauses relevant to the freedom of religion: the establishment clause and the free exercise clause. The establishment clause provides a wall of separation between church and state and prevents local, state, and federal governments from enacting any law that establishes an official church or favoring one religion over another. For example, laws that criminalized failure to go to weekly religious services or failure to donate money to a religious organization would be unconstitutional exercises of the state’s police power in light of the protections of the Establishment Clause (Owen, et. al, 2019).

The free exercise clause protects people’s rights to act on their beliefs. For instance, the Supreme Court struck down a local ordinance that prohibited the ritual killing of animals (such as “chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles,” some of which are cooked and then consumed after sacrifice) because it infringed upon the religious beliefs of a group that practices animal sacrifice (Church of Lukumi Babalu Aye v. City of Hialeah, 1993, p. 525). The freedom to act on religious beliefs is not absolute, however. No one may violate otherwise valid laws in the name of freely practicing religion. For example, (see Reynolds v. United States, 1878)  laws criminalizing polygamy have been upheld even if one’s religion condones having multiple spouses (Owen, et. al, 2019).