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1st Amendment of the US Constitution

This article explains the major provisions and protections of the 1st Amendment to the US Constitution.

What is the “1st Amendment”?

The 1st Amendment to the Constitution states that, “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 for the following fundamental freedoms:

• Freedom of Religion
• Freedom of Speech
• Freedom of Press
• Freedom of Assembly

What are the “Establishment Clause” and “Free Exercise Clauses”?

The freedom of religion portion of the 1st Amendment is made up of the Establishment Clause and the Free Exercise Clause.

Establishment Clause

The 1st Amendment states that, “Congress shall make no law respecting an establishment of religion” or “prohibiting the free exercise thereof.”

The first provision of this clause is known as the “Establishment Clause”. It stands for the principle that the government should not force any particular religion(s) onto its citizens.

Free Exercise Clause

The second provision of the 1st Amendment addressing religion is known as the “Free Exercise Clause”. It provides that the government cannot prohibit individuals from practicing any religion.

The Free Exercise Clause has been the subject of significant litigation charging the government with discriminating against individuals’ religious practices.

The common law test for determining whether a government statute runs afoul of the Free Exercise Clause by unduly restricting the free exercise of religion is as follows:

  • Secular Purpose: Does the statute or government action affecting religion have a secular (non-religious) purpose? If the purpose of the statute or government action is to somehow promote any single or particular group of religions, the statute is unconstitutional. If the purpose of the statute or government action is not to promote religion, then move onto the next step.
    • Example: If a government allows a manger scene on government property during Christmas and denies citizens the right to put a menorah or minaret, this action would not have a secular purpose.
  • Primary Effect: Is the primary effect of the statute or government action to advance or inhibit religion? Even if the purpose of the statute or action is secular, it may violate the Establishment Clause if the primary effect is to somehow advance or inhibit a religion among the citizens. The word “primary” is of particular importance. It leaves room for statutes or actions that only incidentally promote a particular religion. If the primary effect is something other than advancing or inhibiting religion, move on to the next step.
  • Excessive Entanglement: Does the statute cause excessive government entanglement with religion? Even if the statute only has a secondary effect upon religion, it may still result in too much government involvement with religious practice to comply with the Establishment Clause. This is a floating standard that greatly depends on the specific law and how it affects religious practice.

If a law or government action violates any one of the above elements, it is an unconstitutional infringement of the 1st Amendment’s religious protections.

How does freedom of religion affect business practice?

Generally, for-profit businesses covered by Title VII of the Civil Rights Act of 1964 may not discriminate against employees on the basis of religion.

There is an exception for religious organizations whose primary purpose necessitates religious practice or affiliation among its employees.

Aside from the prohibitions on employment practices, common law holds that closely-held corporations may have religious protections similar to those of citizens.

Note: This issue came to the forefront of consideration in the case, Burwell v. Hobby Lobby Stores, Inc., The Court found that the religious beliefs of owners of the closely-held entity were sufficiently tied to the religious beliefs of the owners to be susceptible to protection under the 1st Amendment. The court’s holding exempts closely-held businesses from laws that mandate or prohibit certain conduct conflicting with that belief.

Example: ABC, LLC is a small restaurant with 25 employees. ABC is solely owned by a family of devout Christians. ABC refuses to hire any employees who are not Christian. Further, ABC refuses to offer a health insurance plan than covers subscriptions for birth control. ABC’s failure to hire non-Christians may constitute illegal discrimination. The common law, however, allows a closely-held business entity to adopt the religious beliefs of its owners. As such, refusing to sponsor a health insurance plan that contains provisions conflicting with the owner’s religious beliefs is likely legal. This example demonstrates the fine line between business practices that discriminate against others based upon religious belief with practices that cause a business to violate its own beliefs.

Discussion & Practice Questions

What conduct is protected pursuant to the 1st Amendment’s assurance of “freedom of speech”?

The 1st Amendment provides for the freedom to speak and express oneself.

The freedom of speech is far broader in its protections than simply protecting the spoken word. It protects individual rights with regard to any form of expression.

Forms of expression may include speech, writings, physical expressions, symbols or symbolic activity, etc. The freedom of speech may still face certain limitations by the government.

Certain types of speech are not protected. Further, the government may place certain limitations on the location and timing of speech that takes place on government property or somehow affects the rights of others.

Note: Remember, the Constitution protects an individual’s rights against infringement or repression by the government. Individuals or businesses cannot infringe upon an individual’s freedom of speech.

Example: ABC is a small town. A local ordinance limits the ability of citizens to give speeches or carry out other forms of expression on municipal property without first obtaining a permit. The permit procedure requires that any form of public expression be conducted within certain hours and not exceed a certain noise level. These are examples of government interference with free speech. This may, however, be legal as a limited restriction on speech. The standards applied by courts when a law infringes upon a fundamental right are discussed at the end of this chapter.

What type of speech is either not protected or receives limited protection?

The Supreme Court has interpreted the 1st Amendment to not protect all forms of speech. That is, some forms of speech or expression may be limited or fully prohibited by the Government.

In determining whether a type of speech or expression is protected, the court will balance the rights of the individual against the potential harm to or effect upon the rights of others.

Because the freedom of speech is a fundamental right, the Government cannot limit speech without a compelling government interest justifying the restriction.

Pursuant to this understanding, statutory and common law often prohibit or limit the protections offered to: Obscene Speech, Fighting Words, Commercial Speech, Defamation, and Political Speech.

Obscene Speech and the 1st Amendment

Obscene expressions are those that appeal to the “prurient interest”. Such expressions are deemed harmful to the community.

There is no standard definition of obscenity; rather, courts determine whether an expression is obscene based upon the beliefs, perceptions, or standards of the local population.

While there is no common definition of obscenity, a state or local law that is too restrictive or broad in its provisions limiting expression is subject to be overturned by the judiciary as an undue restriction on the freedom of speech.

Example: One community may feel that allowing fully nude dancing in night clubs is obscene; while other communities may not believe it to be obscene.

Fighting Words and the 1st Amendment

Fighting Words – Fighting words are those deemed likely to immediately incite violence by listeners.

An important requirement for an expression to constitute fighting words is that the threat of violence be immediate. This means that the subject-matter exception is determined by the physical presence and likely reaction of third parties.

Example: Many public presentations openly calling for violent activity by the crowd are limited or regulated; however, the same form of expression recorded and later distributed to listeners may not constitute fighting words. The difference is the immediacy of the threat of violence created by the presence of a crowd.

Commercial Speech and the 1st Amendment

There is only a limited right to undertake commercial speech. Such expressions necessarily involve third parties who take actions based upon that speech.

The government’s regulation of commercial speech is based upon the potentially negative effect on the general welfare of society. The limitation upon the regulation of commercial speech is that the government must have a compelling state interest to justify the restriction.

Note: Common law holds that corporations have limited rights to free speech that are very similar to those of individuals. The Constitutional standards applied by a court when determining the validity of government laws or actions limiting an individual’s rights are discussed in a separate section.

Example: Business practices that knowingly deceive individuals may constitute fraud. Many deceptive advertising practices violate consumer protection laws. The federal and state governments require disclosure of material information about publicly-held companies. All of these examples demonstrate a balance between protecting the public and protecting the freedom of speech afforded individuals.

Defamation and the 1st Amendment

Defamation is the publication (open communication) of false statements about others that will knowingly subject that person’s character to ridicule or disrepute.

“Slander” is verbally defaming someone.

“Libel” is defaming someone through a writing.

“Disparagement” is defaming someone’s business prowess or practice.

Defamation statutes do not prohibit this type of speech (a prior restraint of the speech); rather, they allow an individual harmed by the speech to recover damages for harm suffered as a result of the speech.

Potential liability for defamation, however, can have the effect of dissuading free speech. This fact must be balanced against the protections afforded the individual who is the subject of the defamatory expression. In any case, the defamed individual must demonstrate an actual harm suffered as result of the defamation.

Example: A state passes a law that allows for a civil cause of action (and damages) against an individual who makes a false statement about another person that results in harm to that person’s reputation. While an individual has a 1st Amendment right to make any form of speech or expression, this right must be balanced against the rights of those who may be harmed by such speech or expression. In this case, promoting the well-being of citizens is a compelling interest of the state. Allowing a cause of action for this sort of defamation is likely constitutional.

Note: To lessen the potential for the suppression of the free and open press, a plaintiff must show intentional defamation or “malice” by the publisher toward the defamed person. Likewise, a public figure or celebrity must demonstrate this higher standard of intent to hold someone liable for defamatory statements. Disparagement represents the societal interest of allowing individuals to undertake commercial activity free of the damaging effects of defamatory attacks.

Political Speech and the 1st Amendment

Individuals and corporations are entitled to only limited protection of political speech.

Political speech includes the spending or donation of money to political campaigns or undertaking political activism. As such, political contributions by individuals or entities may be subject to regulation.

Individuals and businesses are limited in the amount of funds that they can contribute to political candidates for federal office and certain groups that donate to political candidates.

Historically, corporations were also limited in their ability to directly fund or undertake political activism. The issue of direct spending in elections came to the forefront in the case, Citizens United v. Federal Election Commission. In this case, the court held that corporations hold rights similar to those of individuals with regard to political speech.

As such, many of the existing regulations of the amount of funds or activity that a corporation may spend or undertake with regard to political campaigns were held invalid. This case did not, however, affect the legal limits on individuals and organization to make contributions directly to candidates and groups dedicated to making contributions to candidates.

Note: These provisions apply to federal elections and not state elections. Also, there is currently no limit on the amount of money that an individual or corporation can make to independent-expenditure-only committees, also known as “Super-Pacs”. These groups spend directly on political activity in support of particular candidates.

Example: A state passes a law that limits the amount of money that citizens and corporations can give directly to state politicians running for office. While giving money is a type of expression that is protected under the 1st Amendment, this restriction upon individual rights aimed at preserving the integrity of the election system may be constitutional.

What is “overbreadth” or an “overbroad” law affecting freedom of speech?

To pass constitutional muster, the government must have a compelling interest in passing a law regulating free speech.

The law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. In this way, it affects more speech than is necessary to achieve the government’s compelling interest.

While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional.

Example: A state passes a law that restricts individuals from urging support for a political candidate at a polling location. The purpose of the statute is to prevent undue pressure of individuals in exercising their right to vote. The statute, however, is likely too broad in that it could prohibit individuals from having casual conversations about their voting activity. As such, the law would have to be more “narrowly tailored” for it not to violate 1st Amendment protections.

What is the “Freedom of Press” granted under the 1st Amendment?

The 1st Amendment states that, “Congress shall make no law … abridging the freedom of … the press.” Generally, it prohibits attempts by the government to curtail the freedom of expression through the public dissemination of information.

More specifically, it prohibits any restraint prior to the publication of information, or “prior restraints”. Rather, protections of free press are commonly reduced after the publication of the information.

That is, an individual or organization may be held liable subsequent to the publication of information, as the publication may run afoul of laws protecting the public (e.g., defamation).

Example: The local news channel may report on any matters of public interest pursuant to the freedom of the press. Limiting the content that the media may cover is a prior restraint and would abridge this freedom. Holding the new channel liable for intentionally defaming a person is a limitation on freedom of press that is generally constitutional.

What is the “Freedom of Assembly”?

The freedom of assembly, commonly known as the “freedom of association”, protects individuals’ rights to assemble in groups for the purpose of expressing common beliefs or pursuing common interests.

The right of assembly includes the right to physically assemble and the right to be a member of an organization. The right of physical assembly is commonly restricted by “time, place, and manner” restrictions.

These restrictions must meet the highest level of scrutiny when determining whether such restrictions are constitutional.

Example: The government commonly requires permits or licensing for assembly. This is a limited regulation of the time, place, and manner of assembly. The application process cannot totally close off the assembly. But, it may require that the participants adhere to limited restrictions.

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