History: Amendment 1 – US Constitution #bridges #history

During a recent conversation, I realized how little I knew about the Constitution and the various Amendments.  I plan on writing blogs for the various Amendments first and later the Constitution, setup of The Bill of Rights, etc.  As I read about them or find different tidbits, I will go back and update blogs with additional information.  I am, by NO means, professing to be an expert on this subject (AT ALL).  I just hope that by educating myself I will be better suited in conversations when the topics come up.  What better place to start than at #1?  I welcome comments on the historical aspects of the Amendments but will not tolerate a bashing or political debate of either type leaning. #PoliteDiscourse

Text in black is the actual constitutional text or neutral wording explaining what is being talked about.  Text in red is from a site “considered” to be right leaning site.  Text in blue is from a site “considered” to be left leaning.  At the end of citing a site there will be a link to the page on which the citation was found.  Text in green will be my general thoughts on the subject and more neutral comments like descriptions of subjects.

The actual text:

Amendment 1: 

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or the press, or the right of people to peaceably to assemble and to petition the government for a redress or grievances.

The technical definitions (noting sources):

No law respecting an establishment of religion or prohibiting free exercise thereof: No law will be made pertaining to naming a government supported church or naming a particular religious sect or denomination the official church of a state or nation. (National Center for Constitutional Studies)

or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press: The government will not be at will to forbid, prevent or hinder the use, practice or application (the act or process of taking part in) the ability for one to express ideas by spoken word or the process or business of printing and publishing. (National Center for Constitutional Studies)

or the right of the people peaceably to assemble and to petition the government for a redress of grievances.  People will be able, without disturbance, to come together to make a formal request (usually in writing) for a relief (or compensation for some wrong or injury) of conditions that cause harm or distress. (National Center for Constitutional Studies)

A few facts on this Amendment:

Notice that the phrase “separation of church and state” does not appear in the First Amendment, nor is it found anywhere else in the Constitution. Most people do not realize that the phrase was actually coined later by Thomas Jefferson. In 1802, when he was President, he wrote the opinion that the First Amendment’s freedom of religion clause was designed to build “a wall of separation between Church and State.” (US History dot org)

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” (Thomas Jefferson in an  1802 letter to the Danbury Baptists, a religious minority in CT)

Symbolic speech technically involves no speech at all, but it involves symbols that the courts have judged to be forms of free expression. Symbolic actions such as wearing black armbands in school and draft-card burning fit this category. Symbolic speech is highly controversial, and as a rule, the courts have sometimes considered it to be beyond the limits of free speech. However, the Supreme Court did uphold the right of an individual to burn an American flag in the 1989 Texas vs. Johnson decision. (US History dot org)

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. In 1868, however, the 14th Amendment as added to the U.S. Constitution, and it prohibited states from denying people “liberty” without “due process”. Since then, SCOTUS has gradually used the due process clause to apply most of the Bill of Rights to state governments.  The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employee’s speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns. (britannica.com)

Some types of discussions that bring up this Amendment:

  • When individuals speak on subjects or say things (or particular words) without being limited to do so by the public, the police or any government.
  • When individuals publish articles online or in print (while being accurate and honest) without being limited to do so by the public or any government.
  • When people protest companies, people or ideals.

Thoughts on this Amendment from SCOTUS Justices when arguing cases involving this Amendment:

“If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.  Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Justice Thurgood Marshall (1908-1993) / US Supreme Court Justice / Source: Stenley v Georgia, 1969

“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of greivances.  All these, though not identical, are inseparable. They are cognate rights, and therefore are united in the first article’s assurance.”  Judge Wiley B Rutledge / US Supreme Court Justice / Source: Thomas v Collins, 1944

“Freedom to publish means freedom for all and not for some.  Freedom to publish is guaranteed by the constitution but freedom to continue to prevent others from publishing is not.” Justice Hugo L Black (1886-1971) / US Supreme Court Justice / Source: One Man’s Stand For Freedom, 1963

“But our society, unlike most in the world, presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas; that is the philosophy of the First Amendment; and it is this article of faith that sets us apart from most nations in the world.”  William O Douglass (1898-1980) / US Supreme Court Justice / Source: dissenting, Paris Adult Theatre I v Slaton

“As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.  The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” Justice Paul Stevens / US Supreme Court Justice / Source: Majority Opinion, Communications Decency Act, 26 June 1997

“Compelling a man by law to pay his money to elect candidates or advocate law or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a dandidate, a party, or cause he is against.  The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the government commands.”  Justice Hugo L Black(1886-1971) / US Supreme Court Justice / Source: IAM v Street, 367 US, 1961

Articles on this Amendment (sources cited):

The First Amendment is widely considered to be the most important part of the Bill of Rights. It protects the fundamental rights of conscience—the freedom to believe and express different ideas–in a variety of ways. Under the First Amendment, Americans have both the right to exercise their religion as well as to be free from government coercion to support religion. In addition, freedoms of speech, press, and petition make democratic self-government possible by promoting the open exchange of information and ideas. Unpopular ideas are especially protected by the First Amendment because popular ideas already have support among the people. As Justice Oliver Wendell Holmes said, “freedom for the thought that we hate” is important to the discovery of truth, because sometimes viewpoints change. According to Holmes, the way to oppose thoughts with which we disagree is not to ban them, but to speak up for what we believe. In this way, truth has an opportunity to compete in the “marketplace of ideas.” (PBS)

Some important cases involving this Amendment (via Judicial Learning Center):

Tinker v. Des Moines Independent Community School District, 1969: Three public school students wore black armbands to school to protest the Vietnam War.  They were suspended from school for refusing to remove them.  John Tinker and Christopher Eckhardt were high school students, and Mary Beth Tinker was in 8th grade at the junior high.  Upon hearing about their plan to wear the armbands, the school district created a policy forbidding armbands.  The three students wore the armbands anyway, and they were suspended from school.  They sued the district for violating their 1st Amendment rights.  Decision: The school did violate the students’ rights.  Non-disruptive, passive, symbolic speech cannot be censored just because it makes others uncomfortable.  The symbolic wearing of armbands could not be shown to interfere with school discipline.  The Supreme Court established the “Tinker Test”, the standard that public schools must meet before legally restricting free speech or expression of students.  The free expression of public school students can only be restricted if it threatens a material and substantial disruption of the educational process, or invades the rights of others.

Bethel School District v. Fraser, 1968: A public school student was suspended for giving a speech at a school assembly that included indecent content. Matthew Fraser was a high school student who gave a speech to nominate another student for a student government office. Approximately 600 other students voluntarily attended the assembly at which the speech was given. The speech included repeated use of an “elaborate, graphic, and explicit sexual metaphor,” in reference to the other student. The speech caused his fellow students to yell and make obscene gestures. He later admitted using sexual innuendo in the speech and was suspended. He was also banned from speaking at graduation. The school had a standing policy against disruptive conduct. He sued the school for violating his right to free speech. Decision: The school did not violate the student’s rights.  The 1st Amendment does not prevent a school district from disciplining a student for using speech that is lewd or indecent.  It is the responsibility of the school to prohibit the use of vulgarity, and to teach students about the boundaries of appropriate behavior.   The school district did not overstep its authority by punishing the student.

Hazelwood School District v. Kuhlmeier, 1988: A public school principal removed two articles from the school newspaper due to content he considered inappropriate.  The school newspaper at Hazelwood East High School, “Spectrum,” was produced by the journalism class.  The district’s Board of Education paid for the publication.  Two articles were removed from an issue because the principal found their content objectionable.  One story was about teen pregnancy, and the other was about divorce.  Cathy Kuhlmeier and two other students from the class sued the school, claiming their 1st Amendment rights had been violated. Decision: The school district did not violate the rights of students. Public schools can regulate, with some limitations, the content of student newspapers and other publications that are paid for by the school and bear its name. Student newspapers are considered limited public forums (as opposed to public forums), and are subject to lesser 1st Amendment protections. Educators are not in violation of the 1st Amendment when censoring school-sponsored publications, so long as their actions are reasonably related to educational concerns.


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