The First Amendment was proposed by the First Congress and ratified in 1791 as part of the Bill of Rights. The amendment contains two clauses related to religion. One provides that “Congress shall make no law respecting an establishment of religion.” The other forbids Congress from “prohibiting the free exercise thereof.” The amendment also provides protection for freedom of speech, press, peaceable assembly, and petition. Without the latter rights, a republican, or representative, form of government would be quite precarious. Although it was originally the third of 12 proposed amendments (the first two of which were not initially ratified), there is some rightful symbolism in the fact that this important amendment now heads the Bill of Rights.
The First Amendment is a distillation of proposals that James Madison submitted to Congress after consulting state constitutions and requests from the state ratifying conventions. In the area of religion, Madison proposed that “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” (Kurland and Lerner 1987, 5:25). In attempting to protect freedom of speech and the press, Madison proposed that “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.” Similarly, Madison proposed that “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” (Kurland and Lerner 1987, 5:25). Madison also proposed that “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases” (Kurland and Lerner 1987, 5:25).
It appears that Madison's wording prohibiting Congress from establishing a “national” religion was dropped largely out of concern that it would imply that the new government was “national” rather than “federal” (Kurland and Lerner 1987, 5:93). A similar concern for states' rights apparently led to the deletion of Madison's guarantee against state invasions of individual rights by the states.
No provisions of the First Amendment have provoked greater controversy than the first two clauses dealing with religion. There may well be implicit tension between the idea that government should not establish religion and the guarantee that it should not interfere with its free exercise. Thus, attempts to guarantee free exercise may further religion, whereas attempts to prevent an establishment may infringe on religious exercise. Congress continues to discuss a Religious Equality Amendment that might better clarify this balance.
The most notable cases before the Supreme Court involving the establishment clause have involved public prayer and Bible reading in public schools. In Engel v. Vitale (1962), the Supreme Court ruled that the recitation of a prayer composed by the New York State Board of Regents constituted an impermissible establishment of religion that violated the rights of nonbelievers. Similarly, in Abington v. Schempp (1963), the Court struck down daily devotional Bible readings and recitations of the Lord's Prayer in school. Although courts appear to be more receptive toward the idea of a moment of silence during which prayer is not mandated but may take place, the earlier Court decisions continue to bring calls for a constitutional amendment. A decision of the U.S. Court of Appeals for the Ninth Circuit in 2002 that the pledge of allegiance could not be recited in public schools because of its inclusion of the words “under God” although eventually mooted, led to a number of proposed amendments.
Under its interpretations of the establishment clause, the Supreme Court has struck down most forms of direct governmental aid to parochial schools. In so doing, it formulated the three-pronged Lemon test, named after the case Lemon v. Kurtzman (1971), in which it was first formulated. This test requires that, to pass constitutional muster, a law must have a secular legislative purpose; must not, as its primary effect, either advance or inhibit religion; and must avoid excessive entanglement between church and state. On occasion the Court has decided that government funding that promotes student or parental partic-ipation in parochial schools is not unconstitutional. Thus, the Supreme Court has permitted tax write-offs for parents who send children to parochial schools (Mueller v. Allen ); vocational assistance monies for use by a blind stu-dent attending a religious college (Witters v. Washington Department of Services for the Blind ); use of a publicly funded sign language interpreter for a deaf student attending a Catholic high school (Zobrest v. Catalina Foothills School District ); the use of public school teachers to teach remedial classes in parochial school settings (Agostini v. Felton ); and, most recently, the use of state vouchers to private schools (Zelman v. Simmons-Harris ).
Sometimes the Court ignores the Lemon test. Thus, in Marsh v. Chambers (1983), it permitted continuation of the practice of a chaplain leading prayers at the beginning of a state legislative session; in Lynch v. Donnelly (1984), it permitted the display of a religious crèche on public property because this crèche was part of a much larger secular display (see Swanson 1990). These decisions interpreted the establishment clause to permit accommodation between the government and religion; others have taken a view of strict separation of church and state, and still others attempt to enforce complete neutrality (for one view, see Monsma 1993; for another, see Levy 1986).
The free exercise clause intended to guarantee a wide range of religious freedoms, but questions remain as to the degree to which it should exempt religious people from criminal laws. In Employment Division v. Smith (1990), the Supreme Court ruled that state employees fired from their jobs for ingesting peyote as part of a Native American religious ceremony were not entitled to unemployment compensation. The outcry over the decision, which appeared to contradict some earlier cases in which the Court had taken a more sympathetic stance toward actions, albeit not typically illegal ones, motivated by religious beliefs, led to the Religious Freedom Restoration Act. It attempted to ensure that the Court did not override free exercise claims except in cases in which the government was able to establish a compelling state interest. The Supreme Court overturned this law in City of Boerne v. Flores (1997), deciding that it exceeded congressional powers under Section 5 of the Fourteenth Amendment, granting power to “enforce” but not to “reinterpret” the provisions of that amendment. This decision has led to renewed calls for a Religious Equality Amendment, some versions of which would require that courts strike down laws with differential impacts on amendments that do not have a “compelling state interest.”
Freedom of speech is essential to the democratic process, but speech can be so related to action that the First Amendment's seemingly absolute prohibition on governmental infringement of the former has been subject to numerous judicial qualifications. In an early case, Schenck v. United States (1919), Justice Oliver Wendell Holmes noted that even the most stringent protection of speech would not protect an individual falsely shouting “fire” in a crowded theater and causing a panic. Although there has been much subsequent discussion and eventual judicial repudiation of Holmes's “clear and present danger” test, the notion that even speech has limits has remained. In Brandenburg v. Ohio (1969), the Court indicated that it would suppress the expression of pure speech only when it was likely to lead to imminent lawless action (Wirenius 1994).
The Court has been willing to accept reasonable restrictions on the time, place, and manner of speech, but it has been wary of laws that single out speech on the basis of its content. In recent years, the Court has also extended protection to symbolic speech. Its two most controver-sial cases have been Texas v. Johnson (1989) and United States v. Eichman (1990), wherein the Court respectively struck down a state law and a federal law designed to prohibit desecration of the American flag. Numerous amendments have been introduced to overturn these decisions, and support in the states is strong for such an amendment. During the Cold War, amendments were also introduced to ban certain types of speech thought likely to lead to subversion of the government.
There are a number of special areas related to freedom of speech that the Supreme Court has treated somewhat differently from others. For example, the Supreme Court has never regarded obscenity as speech. In Miller v. California (1973), it identified three criteria for defining obscenity. Under these criteria, speech can be judged obscene if the average person applying contemporary community standards would find that a work taken as a whole appeals to a pruri-ent (lustful) interest in sex; if a work depicts or describes in a patently offensive way sexual conduct specifically defined by law; and if such a work lacks serious literary, artistic, political, or scientific value. These criteria still leave considerable room for judicial judgment. In a number of recent decisions, the U.S. Supreme Court has struck down laws designed to protect children from obscene materials on the Internet. Although concerned about children, the Court insists that laws designed to protect children cannot be so broad that they would deny legitimate rights to adults.
Libel, or defamatory writing, is another special area. Since New York Times Co. v. Sullivan (1964), the Court has applied the standard of “actual malice” to cases involving “public figures.” This is a stringent test designed to encourage robust criticism of such individuals. Under this test, such figures can collect libel awards only when they are able to demonstrate that information was published with knowledge that it was false or with “reckless disregard” for its veracity (see Lewis 1991).
Although it is an extremely narrow category, the Supreme Court also ruled in Chaplinsky v. New Hampshire (1942) that so-called fighting words are not protected by the First Amendment. Such words are derogatory words spoken in close proximity to another person and likely to evoke physical violence rather than reasoned discussion. Similarly, the Court will not protect “true threats” of violence to others.
The U.S. Supreme Court has generally concluded that the First Amendment protects symbolic expression. Thus in Tinker v. Des Moines Independent Community School District (1969), it upheld the right of junior high school students to wear black armbands to school in protest of the Vietnam War. In some cases in which speech has been combined with illegal action, the Court has permitted regulation. In United States v. O'Brien (1968), for example, it upheld a law prohibiting individuals from burning their draft cards, which were considered to be government property essential to the national selective service system.
Freedom of the press is a corollary to freedom of speech (Powe 1991), and the two rights often overlap, as in the Internet and libel cases mentioned above. Traditionally, the core of freedom of the press was identified as the prohibition against prior restraint of publication. Although it strongly affirmed this core content in Near v. Minnesota (1931), the Supreme Court also insisted that the freedom was wider than this. In New York Times Co. v. United States (1971), the Pentagon Papers case, the Supreme Court overruled an injunction against the Times and other newspapers and permitted them to publish a classified story critical of American participation in the Vietnam conflict (see Unger 1972). Members of the press have used the First Amendment to assert privileges against being called before grand juries, but, to date, they have had more success in receiving protection through legislation (known as shield laws) than through judicial decisions. Courts have been generally wary of extending protections, such as exemption from grand jury testimony, to members of the official press that it does not extend to all—see Branzburg v. Hayes, In re Pappas, and United States v. Caldwell (1972).
The guarantees for peaceable assembly and petition have not been adjudicated as frequently as others in the First Amendment, but like the other guarantees, they are critical to the functioning of democratic institutions, including petitions for desired constitutional amendments. In recent years, the Supreme Court has held that these and related clauses guarantee a constitutional right of association. In Griswold v. Connecticut (1965), Justice William O. Douglas cited the First Amendment, and this right of association, as one of the foundations of the constitutional right to privacy. More recently, in Boy Scouts of America v. Dale (2000), the U.S. Supreme Court limited the application to the Boy Scouts of a New Jersey law forbidding discrimination against homosexuals, on the basis that the Scouts composed a private association, whose views were at odds with homosexual behavior.
All the provisions of the First Amendment have been applied to the states via the due process clause of the Fourteenth Amendment. Although interpretations by the U.S. Supreme Court serve as a floor below which state standards may not fall, states may extend higher degrees of protection to First Amendment freedoms under their own individual constitutions.
See also Abington v. Schempp; Engel v. Vitale; Flag Desecration; Madison, James; Obscenity and Pornography; Prayer in Schools; Religious Equality Amendment; Religious Freedom Restoration Act; Texas v. Johnson.
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