The First Amendment (Amendment I) to the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
prevents
the government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
from making laws that regulate an
establishment of religion
A state religion (also called religious state or official religion) is a religion or creed officially endorsed by a sovereign state. A state with an official religion (also known as confessional state), while not secular, is not necessarily a th ...
, or that prohibit the
free exercise of religion
Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
, or abridge the
freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
, the
freedom of the press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic News media, media, especially publication, published materials, should be conside ...
, the
freedom of assembly
Freedom of peaceful assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ide ...
, or the
right to petition
The right to petition government for redress of grievances is the human rights, right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals.
In Europe, Article 44 of the Charter of Fundamen ...
the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
.
The Bill of Rights was proposed to assuage
Anti-Federalist
Anti-Federalism was a late-18th century political movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the 1787 Constitution. The previous constitution, called the Articles of Con ...
opposition to
Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
, and many of its provisions were interpreted more narrowly than they are today. Beginning with ''
Gitlow v. New York
''Gitlow v. New York'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...
'' (1925), the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
applied the First Amendment to states—a process known as
incorporation—through the
Due Process Clause of the Fourteenth Amendment.
In ''
Everson v. Board of Education'' (1947), the Court drew on
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st century court decisions which protected various forms of political speech, anonymous speech,
campaign finance
Campaign finance, also known as election finance or political donations, refers to the funds raised to promote candidates, political parties, or policy initiatives and referendums. Political parties, charitable organizations, and political ac ...
, pornography, and
school speech
The issue of school speech or curricular speech as it relates to the First Amendment to the United States Constitution has been the center of controversy and litigation since the mid-20th century. The First Amendment's guarantee of freedom of spe ...
; these rulings also defined a series of
exceptions to First Amendment protections. The Supreme Court overturned
English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
precedent to increase the burden of proof for
defamation
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
and
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
suits, most notably in ''
New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
'' (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In ''
Near v. Minnesota
''Near v. Minnesota'', 283 U.S. 697 (1931), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court under which prior restraint on publication was found to violate Freedom of the press in the United S ...
'' (1931) and ''
New York Times v. United States'' (1971), the Supreme Court ruled that the First Amendment protected against
prior restraint
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship ...
—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects
freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membe ...
.
Although the First Amendment applies only to
state actors
In United States constitutional law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to limitations imposed on government by the United States Constitution, including the First, Fifth, and Fourt ...
, there is a common misconception that it prohibits anyone from limiting free speech, including private, non-governmental entities.
Moreover, the Supreme Court has determined that protection of speech is not absolute.
Text
Background
![James Madison](https://upload.wikimedia.org/wikipedia/commons/1/1d/James_Madison.jpg)
The right to petition for redress of grievances was a principle included in the 1215
Magna Carta
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
, as well as the
1689 English Bill of Rights. In 1776, the second year of the
American Revolutionary War
The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...
, the
Virginia colonial legislature passed a
Declaration of Rights that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other twelve states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.
After several years of comparatively weak government under the
Articles of Confederation
The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
, a
Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive.
George Mason
George Mason (October 7, 1792) was an American planter, politician, Founding Father, and delegate to the U.S. Constitutional Convention of 1787, one of the three delegates present who refused to sign the Constitution. His writings, including s ...
, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
. Other delegates—including future Bill of Rights drafter
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
—disagreed, arguing that existing state guarantees of civil liberties were sufficient and any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the
1st United States Congress
The 1st United States Congress, comprising the United States Senate and the United States House of Representatives, met from March 4, 1789, to March 4, 1791, during the first two years of George Washington's presidency, first at Federal Hall in ...
, following the state legislatures' request, James Madison proposed twenty constitutional amendments, and his proposed draft of the First Amendment read as follows:
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. 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. 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.
This language was greatly condensed by Congress, and passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent. Congress approved and submitted to the states for their ratification twelve articles of amendment on September 25, 1789. The revised text of the third article became the First Amendment, because the last ten articles of the submitted 12 articles were ratified by the requisite number of states on December 15, 1791, and are now known collectively as the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
.
Freedom of religion
![Large Broadside on the Maryland Toleration Act](https://upload.wikimedia.org/wikipedia/commons/9/9e/Large_Broadside_on_the_Maryland_Toleration_Act.jpg)
Religious liberty, also known as freedom of religion, is "the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth."
The acknowledgement of religious freedom as the first right protected in the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
points toward the American founders' understanding of the importance of religion to human, social, and political flourishing.
Freedom of religion
Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
is protected by the First Amendment through its
Establishment Clause
In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
and
Free Exercise Clause
The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The ''Establishment Clause'' and the ''Free Exercise Clause'' together read:
Free exercise is the liberty of persons to re ...
, which together form the religious liberty clauses of the First Amendment.
The first clause prohibits any governmental "establishment of religion" and the second prohibits any governmental interference with "the free exercise thereof."
These clauses of the First Amendment encompass "the two big arenas of religion in
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
. Establishment cases deal with the Constitution’s ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans’ rights to practice their faith."
Both clauses sometimes compete with each other. The Supreme Court in ''
McCreary County v. American Civil Liberties Union'' (2005) clarified this by the following example: When the government spends money on the clergy, then it looks like establishing religion, but if the government cannot pay for
military chaplains
A military chaplain ministers to military personnel and, in most cases, their families and civilians working for the military. In some cases they will also work with local civilians within a military area of operations.
Although the term '' ch ...
, then many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.
In ''
Murdock v. Pennsylvania
''Murdock v. Pennsylvania'', 319 U.S. 105 (1943), was a case in which the Supreme Court of the United States held that an ordinance requiring door-to-door salespersons ("solicitors") to purchase a license was an unconstitutional tax on religious e ...
'' (1943) the Supreme Court stated that "Freedom of press, freedom of speech, freedom of religion are in a preferred position.".
The Court added:
Plainly, a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
.
In his dissenting opinion in ''
McGowan v. Maryland'' (1961), Justice
William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
illustrated the broad protections offered by the First Amendment's religious liberty clauses:
The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish—whether the result is to produce Catholics
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, Jews, or Protestants
Protestantism is a branch of Christianity that follows the theological tenets of the Protestant Reformation, a movement that began seeking to reform the Catholic Church from within in the 16th century against what its followers perceived to b ...
, or to turn the people toward the path of Buddha
Siddhartha Gautama, most commonly referred to as the Buddha, was a śramaṇa, wandering ascetic and religious teacher who lived in South Asia during the 6th or 5th century BCE and founded Buddhism.
According to Buddhist tradition, he was ...
, or to end in a predominantly Moslem
Muslims ( ar, المسلمون, , ) are people who adhere to Islam, a monotheistic religion belonging to the Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God of Abraham ...
nation, or to produce in the long run atheists
Atheism, in the broadest sense, is an absence of belief in the existence of deities. Less broadly, atheism is a rejection of the belief that any deities exist. In an even narrower sense, atheism is specifically the position that there no d ...
or agnostics. On matters of this kind, government must be neutral. This freedom plainly includes freedom from religion, with the right to believe, speak, write, publish and advocate anti-religious programs. '' Board of Education v. Barnette, supra'', 319 U. S. 641. Certainly the "free exercise" clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment, by its "establishment" clause, prevents, of course, the selection by government of an "official" church. Yet the ban plainly extends farther than that. We said in '' Everson v. Board of Education'', 330 U. S. 1, 330 U. S. 16, that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision
Circumcision is a surgical procedure, procedure that removes the foreskin from the human penis. In the most common form of the operation, the foreskin is extended with forceps, then a circumcision device may be placed, after which the foreskin ...
. Nor could it require all children to be baptized
Baptism (from grc-x-koine, βάπτισμα, váptisma) is a form of ritual purification—a characteristic of many religions throughout time and geography. In Christianity, it is a Christian sacrament of initiation and adoption, almost ...
or give tax exemptions only to those whose children were baptized.
One of the central purposes of the First Amendment, the Supreme Court wrote in ''
Gillette v. United States
''Gillette v. United States'', 401 U.S. 437 (1971), is a decision from the Supreme Court of the United States, adding constraints on the terms of conscientious objection resulting from draftees in the Selective Service..
Background and Consolida ...
'' (1970), consists "of ensuring governmental neutrality in matters of religion."
The history of the Establishment Clause and the Free Exercise Clause and the Supreme Court's own constitutional jurisprudence with respect to these clauses was explained in the 1985 case ''
Wallace v. Jaffree
''Wallace v. Jaffree'', 472 U.S. 38 (1985), was a United States Supreme Court case deciding on the issue of silent school prayer.
Background
An Alabama law authorized teachers to set aside one minute at the start of each day for a moment for ...
''. The Supreme Court noted at the outset that the First Amendment limits equally the power of
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
and of the states to abridge the individual freedoms it protects. The First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. The
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the
Fourteenth Amendment imposes on the states the same limitations the First Amendment had always imposed on the Congress. This "elementary proposition of law" was confirmed and endorsed time and time again in cases like ''
Cantwell v. Connecticut
''Cantwell v. Connecticut'', 310 U.S. 296 (1940), is a landmark court decision by the United States Supreme Court holding that the First Amendment's ''federal'' protection of religious free exercise incorporates via the Due Process Clause of t ...
'', 310 U. S. 296, 303 (1940) and ''
Wooley v. Maynard'' (1977). The central liberty that unifies the various clauses in the First Amendment is the individual's
freedom of conscience
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency by ...
:
Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect
A sect is a subgroup of a religious, political, or philosophical belief system, usually an offshoot of a larger group. Although the term was originally a classification for religious separated groups, it can now refer to any organization that b ...
over another, but would not require equal respect for the conscience of the infidel
An infidel (literally "unfaithful") is a person accused of disbelief in the central tenets of one's own religion, such as members of another religion, or the irreligious.
Infidel is an ecclesiastical term in Christianity around which the Church ...
, the atheist
Atheism, in the broadest sense, is an absence of belief in the existence of deities. Less broadly, atheism is a rejection of the belief that any deities exist. In an even narrower sense, atheism is specifically the position that there no ...
, or the adherent of a non-Christian faith such as Islam
Islam (; ar, ۘالِإسلَام, , ) is an Abrahamic religions, Abrahamic Monotheism#Islam, monotheistic religion centred primarily around the Quran, a religious text considered by Muslims to be the direct word of God in Islam, God (or ...
or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance
Intolerance may refer to:
* Hypersensitivity
Hypersensitivity (also called hypersensitivity reaction or intolerance) refers to undesirable reactions produced by the normal immune system, including allergies and autoimmunity. They are usual ...
extends beyond intolerance among Christian sects – or even intolerance among "religions" – to encompass intolerance of the disbeliever and the uncertain.
Establishment of religion
The precise meaning of the Establishment Clause can be traced back to the beginning of 19th century.
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
wrote about the First Amendment and its restriction on Congress in an 1802 reply to the
Danbury Baptists
Separation of church and state is one of the primary theological distinctions of the Baptist tradition.
History
Originally, Baptists supported separation of church and state in England and America. Some important Baptist figures in the struggle ...
, a religious minority that was concerned about the dominant position of the
Congregational church
Congregational churches (also Congregationalist churches or Congregationalism) are Protestant churches in the Calvinist tradition practising congregationalist church governance, in which each congregation independently and autonomously runs its ...
in
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
, who had
written
Writing is a medium of human communication which involves the representation of a language through a system of physically inscribed, mechanically transferred, or digitally represented symbols.
Writing systems do not themselves constitute h ...
to the newly elected president about their concerns. Jefferson wrote back:
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, and 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.
In ''
Reynolds v. United States
''Reynolds v. United States'', 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. ''Reynolds'' was the first Supreme Court opinion to address the First Amen ...
'' (1878) the Supreme Court used these words to declare that "it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere
eligiousopinion, but was left free to reach
nly those religiousactions which were in violation of social duties or subversive of good order." Quoting from Jefferson's
Virginia Statute for Religious Freedom
The Virginia Statute for Religious Freedom was drafted in 1777 by Thomas Jefferson in Fredericksburg, Virginia, and introduced into the Virginia General Assembly in Richmond in 1779. On January 16, 1786, the Assembly enacted the statute into the st ...
the court stated further in ''Reynolds'':
In the preamble of this act... religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere nlywhen eligiousprinciples break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
![The attack on our outer ramparts - first the house of refuge - then the public schools - then - the Constitution! LCCN2011661440](https://upload.wikimedia.org/wikipedia/commons/7/71/The_attack_on_our_outer_ramparts_-_first_the_house_of_refuge_-_then_the_public_schools_-_then_-_the_Constitution%21_LCCN2011661440.jpg)
''Reynolds'' was the first Supreme Court decision to use the metaphor "a wall of separation between Church and State." American historian
George Bancroft
George Bancroft (October 3, 1800 – January 17, 1891) was an American historian, statesman and Democratic politician who was prominent in promoting secondary education both in his home state of Massachusetts and at the national and internati ...
was consulted by Chief Justice
Morrison Waite
Morrison Remick "Mott" Waite (November 29, 1816 – March 23, 1888) was an American attorney, jurist, and politician from Ohio. He served as the seventh chief justice of the United States from 1874 until his death in 1888. During his tenur ...
in ''Reynolds'' regarding the views on establishment by the
Founding Fathers
The following list of national founding figures is a record, by country, of people who were credited with establishing a state. National founders are typically those who played an influential role in setting up the systems of governance, (i.e. ...
. Bancroft advised Waite to consult Jefferson and Waite then discovered the above quoted letter in a library after skimming through the index to Jefferson's collected works according to historian Don Drakeman.
The Establishment Clause forbids federal, state, and local laws which purpose is "an establishment of religion." The term "establishment" denoted in general direct aid to the church by the government. In ''
Larkin v. Grendel's Den, Inc.'' (1982) the Supreme Court stated that "the core rationale underlying the Establishment Clause is preventing "a fusion of governmental and religious functions," ''
Abington School District v. Schempp
''Abington School District v. Schempp'', 374 U.S. 203 (1963), was a United States Supreme Court case in which the Court decided 8–1 in favor of the respondent, Edward Schempp on behalf of his son Ellery Schempp, and declared that school-spo ...
'', 374 U. S. 203, 374 U. S. 222 (1963)." The Establishment Clause acts as a double security, for its aim is as well the prevention of religious control over government as the prevention of political control over religion.
The First Amendment's framers knew that intertwining government with religion could lead to bloodshed or oppression, because this happened too often historically. To prevent this dangerous development they set up the Establishment Clause as a line of demarcation between the functions and operations of the institutions of religion and government in society.
The
Federal government of the United States
The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fede ...
as well as the state governments are prohibited from establishing or sponsoring religion,
because, as observed by the Supreme Court in ''
Walz v. Tax Commission of the City of New York
''Walz v. Tax Commission of the City of New York'', 397 U.S. 664 (1970), was a case before the United States Supreme Court. The Court held that grants of tax exemption to religious organizations do not violate the Establishment Clause of the Firs ...
'' (1970), the 'establishment' of a religion historically implied sponsorship, financial support, and active involvement of the
sovereign
''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'.
The roles of a sovereign vary from monarch, ruler or ...
in
religious activity.
The Establishment Clause thus serves to ensure laws, as said by Supreme Court in ''
Gillette v. United States
''Gillette v. United States'', 401 U.S. 437 (1971), is a decision from the Supreme Court of the United States, adding constraints on the terms of conscientious objection resulting from draftees in the Selective Service..
Background and Consolida ...
'' (1970), which are "secular in purpose, evenhanded in operation, and neutral in primary impact".
The First Amendment's prohibition on an establishment of religion includes many things from prayer in widely varying government settings over financial aid for religious individuals and institutions to comment on religious questions.
The Supreme Court stated in this context: "In these varied settings, issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit."
The
National Constitution Center
The National Constitution Center is a non-profit institution devoted to the Constitution of the United States. On Independence Mall in Philadelphia, Pennsylvania, the center is an interactive museum and a national town hall for constitutional dia ...
observes that, absent some common interpretations by jurists, the precise meaning of the Establishment Clause is unclear and that decisions by the United Supreme Court relating to the Establishment Clause often are by 5–4 votes.
The Establishment Clause, however, reflects a widely held consensus that there should be no
nationally established church after the
American Revolutionary War
The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...
.
Against this background the National Constitution Center states:
Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organization's selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification.
Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification.
, for example, was officially Congregational until the 1830s.
In ''
Everson v. Board of Education'' (1947), the Supreme Court
incorporated the Establishment Clause (i.e., made it apply against the states):
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another... in the words of Jefferson, the irst Amendment
An infrared search and track (IRST) system (sometimes known as infrared sighting and tracking) is a method for detecting and tracking objects which give off infrared radiation, such as the infrared signatures of jet aircraft and helicopters.
IR ...
clause against establishment of religion by law was intended to erect 'a wall of separation between church and State'.... That wall must be kept high and impregnable. We could not approve the slightest breach.
![L4](https://upload.wikimedia.org/wikipedia/commons/b/b8/L4.jpg)
At the core of the Establishment Clause lays the core principle of denominational neutrality. In ''
Epperson v. Arkansas
''Epperson v. Arkansas'', 393 U.S. 97 (1968), was a landmark United States Supreme Court case that invalidated an Arkansas statute prohibiting the teaching of human evolution in the public schools. The Court held that the First Amendment to the Un ...
'' (1968) the Supreme Court outlined the broad principle of denominational neutrality mandated by the First Amendment: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." The clearest command of the Establishment Clause is, according to the Supreme Court in ''Larson v. Valente'', , that one religious denomination cannot be officially preferred over another. In ''
Zorach v. Clauson
''Zorach v. Clauson'', 343 U.S. 306 (1952), was a case in which the Supreme Court of the United States allowed a school district to allow students to leave school for part of the day to receive religious instruction..
Case
New York State law perm ...
'' (1952) the Supreme Court further observed: "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction." In ''
McCreary County v. American Civil Liberties Union'' (2005) the Court explained that when the government acts with the ostensible and predominant purpose of advancing religion, then it violates that central Establishment Clause value of official religious neutrality, because there being no neutrality when the government's ostensible object is to take sides.
In ''
Torcaso v. Watkins
''Torcaso v. Watkins'', 367 U.S. 488 (1961), was a United States Supreme Court case in which the court reaffirmed that the United States Constitution prohibits states and the federal government from requiring any kind of religious test for pub ...
'' (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from
requiring any kind of religious test for public office. The Supreme Court in the same case made it also clear that state governments and the federal government are prohibited from passing laws or imposing requirements which aid all religions as against non-believers, as well as aiding those religions based on a belief in the existence of God as against those religions founded on different beliefs. In ''
Board of Education of Kiryas Joel Village School District v. Grumet'' (1994), the Court concluded that "government should not prefer one religion to another, or religion to irreligion." In a series of cases in the first decade of the 2000s—''
Van Orden v. Perry
''Van Orden v. Perry'', 545 U.S. 677 (2005), was a United States Supreme Court case involving whether a display of the Ten Commandments on a monument given to the government at the Texas State Capitol in Austin violated the Establishment Clause ...
'' (2005), ''
McCreary County v. ACLU'' (2005), and ''
Salazar v. Buono'' (2010)—the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.
Separationists
![Thomas Jefferson by Rembrandt Peale, 1800](https://upload.wikimedia.org/wikipedia/commons/1/1e/Thomas_Jefferson_by_Rembrandt_Peale%2C_1800.jpg)
''Everson'' used the metaphor of a wall of
separation between church and state
The separation of church and state is a philosophical and jurisprudential concept for defining political distance in the relationship between religious organizations and the state. Conceptually, the term refers to the creation of a secular stat ...
, derived from the correspondence of President
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
. It had been long established in the decisions of the Supreme Court, beginning with ''Reynolds v. United States'' (1878), when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian
George Bancroft
George Bancroft (October 3, 1800 – January 17, 1891) was an American historian, statesman and Democratic politician who was prominent in promoting secondary education both in his home state of Massachusetts and at the national and internati ...
, also discussed at some length the ''Memorial and Remonstrance against Religious Assessments'' by James Madison,
who drafted the First Amendment; Madison used the metaphor of a "great barrier".
In ''Everson'', the Court adopted Jefferson's words.
["In the words of ]homas
In the Vedic Hinduism, a homa (Sanskrit: होम) also known as havan, is a fire ritual performed on special occasions by a Hindu priest usually for a homeowner (" grihastha": one possessing a home). The grihasth keeps different kinds of fire ...
Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State". fro
the ''Everson'' decision
/ref> The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in ''Does God Make a Difference?'', characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities".
Beginning with ''Everson'', which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. ''Everson'' laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important.
Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicia ...
called in his concurrence opinion in '' McCollum v. Board of Education'' (1948) for a strict separation between state and church: "Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation', not of a fine line easily overstepped. ... 'The great American principle of eternal separation'—Elihu Root
Elihu Root (; February 15, 1845February 7, 1937) was an American lawyer, Republican politician, and statesman who served as Secretary of State and Secretary of War in the early twentieth century. He also served as United States Senator from N ...
's phrase bears repetition—is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity."
In the school prayer cases of the early 1960s ''Engel v. Vitale
''Engel v. Vitale'', 370 U.S. 421 (1962), was a landmark United States Supreme Court case in which the Court ruled that it is unconstitutional for state officials to compose an official school prayer and encourage its recitation in public school ...
'' and ''Abington School District v. Schempp
''Abington School District v. Schempp'', 374 U.S. 203 (1963), was a United States Supreme Court case in which the Court decided 8–1 in favor of the respondent, Edward Schempp on behalf of his son Ellery Schempp, and declared that school-spo ...
'', aid seemed irrelevant. The Court ruled on the basis that a legitimate action both served a secular purpose and did not ''primarily'' assist religion.
In ''Walz v. Tax Commission of the City of New York
''Walz v. Tax Commission of the City of New York'', 397 U.S. 664 (1970), was a case before the United States Supreme Court. The Court held that grants of tax exemption to religious organizations do not violate the Establishment Clause of the Firs ...
'' (1970), the Court ruled that a legitimate action could not entangle government with religion. In ''Lemon v. Kurtzman
''Lemon v. Kurtzman'', 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States.. The court ruled in an 8–0 decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act (represented through David Kurtz ...
'' (1971), these points were combined into the Lemon test
''Lemon v. Kurtzman'', 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States.. The court ruled in an 8–0 decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act (represented through David Kurtz ...
, declaring that an action was an establishment if:
# the statute (or practice) lacked a secular purpose;
# its principal or primary effect advanced or inhibited religion; or
# it fostered an excessive government entanglement with religion.
The ''Lemon'' test has been criticized by justices and legal scholars, but it has remained the predominant means by which the Court enforced the Establishment Clause. In '' Agostini v. Felton'' (1997), the entanglement prong of the ''Lemon'' test was converted to simply being a factor in determining the effect of the challenged statute or practice. In ''Zelman v. Simmons-Harris
''Zelman v. Simmons-Harris'', 536 U.S. 639 (2002), was a 5–4 decision of the United States Supreme Court that upheld an Ohio program that used school vouchers. The Court decided that the program did not violate the Establishment Clause of the Fi ...
'' (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test. Further tests, such as the endorsement test The endorsement test proposed by United States Supreme Court Justice Sandra Day O'Connor in the 1984 case of ''Lynch v. Donnelly'' asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment C ...
and coercion test
''Lee v. Weisman'', 505 U.S. 577 (1992), was a Supreme Court of the United States, United States Supreme Court decision regarding school prayer. It was the first major school prayer case decided by the Rehnquist Court. It held that schools may not ...
, have been developed to determine whether a government action violated the Establishment Clause.
In ''Lemon'', the Court stated that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable", the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall', is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."
After the Supreme Court ruling in the coach praying case of ''Kennedy v. Bremerton School District
''Kennedy v. Bremerton School District'', 597 U.S. ___ (2022), is a landmark decision by the United States Supreme Court in which the Court held, 6–3, that the government, while following the Establishment Clause, may not suppress an individual ...
'' (2022), the Lemon Test may have been replaced or complemented with a reference to historical practices and understandings.
Accommodationists
Accommodationists, in contrast, argue along with Justice William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
that " are a religious people whose institutions presuppose a Supreme Being." Furthermore, as observed by Chief Justice Warren E. Burger
Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the William Mitchell ...
in ''Walz v. Tax Commission of the City of New York'' (1970) with respect to the separation of church and state: "No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts—one that seeks to mark boundaries to avoid excessive entanglement." He also coined the term "benevolent neutrality" as a combination of neutrality and accommodationism in ''Walz'' to characterize a way to ensure that there is no conflict between the Establishment Clause and the Free Exercise Clause. Burger's successor, William Rehnquist
William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
, called for the abandonment of the "wall of separation between church and State" metaphor in ''Wallace v. Jaffree
''Wallace v. Jaffree'', 472 U.S. 38 (1985), was a United States Supreme Court case deciding on the issue of silent school prayer.
Background
An Alabama law authorized teachers to set aside one minute at the start of each day for a moment for ...
'' (1985), because he believed this metaphor was based on bad history and proved itself useless as a guide to judging.
David Shultz has said that accommodationists claim the ''Lemon'' test should be applied selectively. As such, for many conservatives
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization in ...
, the Establishment Clause solely prevents the establishment of a state church
A state religion (also called religious state or official religion) is a religion or creed officially endorsed by a sovereign state. A state with an official religion (also known as confessional state), while not secular, is not necessarily a t ...
, not public acknowledgements of God nor 'developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals'. In ''Lynch v. Donnelly
''Lynch v. Donnelly'', 465 U.S. 668 (1984), was a United States Supreme Court case challenging the legality of Christmas decorations on town property.
Background
Pawtucket, Rhode Island's annual Christmas display in the city's shopping district, c ...
'' (1984), the Supreme Court observed that the "concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."
Free exercise of religion
The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. The First Amendment makes clear that it sought to protect "the free exercise" of religion, or what might be called "free exercise equality." Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits governmental interference with religious belief and, within limits, religious practice. "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order." The clause withdraws from legislative power, state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
and federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. "The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, ''Cantwell v. Connecticut
''Cantwell v. Connecticut'', 310 U.S. 296 (1940), is a landmark court decision by the United States Supreme Court holding that the First Amendment's ''federal'' protection of religious free exercise incorporates via the Due Process Clause of t ...
'', 310 U. S. 296, 310 U. S. 303. Government may neither compel affirmation of a repugnant belief, ''Torcaso v. Watkins
''Torcaso v. Watkins'', 367 U.S. 488 (1961), was a United States Supreme Court case in which the court reaffirmed that the United States Constitution prohibits states and the federal government from requiring any kind of religious test for pub ...
'', 367 U. S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, ''Fowler v. Rhode Island
''Fowler v. Rhode Island'', 345 U.S. 67 (1953), was a case in which the Supreme Court of the United States held that a municipal ordinance which was used to penalize a minister of Jehovah's Witnesses for preaching at a peaceful religious meeting ...
'', 345 U. S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, ''Murdock v. Pennsylvania
''Murdock v. Pennsylvania'', 319 U.S. 105 (1943), was a case in which the Supreme Court of the United States held that an ordinance requiring door-to-door salespersons ("solicitors") to purchase a license was an unconstitutional tax on religious e ...
'', 319 U. S. 105; ''Follett v. McCormick'', 321 U. S. 573; cf. '' Grosjean v. American Press Co.'', 297 U. S. 233."
The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion, but also against penalties on the free exercise of religion and against indirect governmental coercion. Relying on ''Employment Division v. Smith
''Employment Division, Department of Human Resources of Oregon v. Smith'', 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on t ...
'' (1990) and quoting from '' Church of the Lukumi Babalu Aye, Inc. v. Hialeah'' (1993) the Supreme Court stated in ''Trinity Lutheran Church of Columbia, Inc. v. Comer
''Trinity Lutheran Church of Columbia, Inc. v. Comer'', 582 U.S. ___ (2017), was a case in which the Supreme Court of the United States held that a Missouri program that denied a grant to a religious school for playground resurfacing, while provid ...
'' (2017) that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for "special disabilities" based on their "religious status" must be covered by the application of strict scrutiny
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
.
In ''Reynolds v. United States
''Reynolds v. United States'', 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. ''Reynolds'' was the first Supreme Court opinion to address the First Amen ...
'' (1878), the Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
found that while laws cannot interfere with religious belief and opinions, laws can regulate religious practices like human sacrifice
Human sacrifice is the act of killing one or more humans as part of a ritual, which is usually intended to please or appease gods, a human ruler, an authoritative/priestly figure or spirits of dead ancestors or as a retainer sacrifice, wherein ...
or the obsolete Hindu practice of suttee
Sati or suttee is a Hindusim , Hindu practice, now largely historical, in which a widow sacrifices herself by sitting atop her deceased husband's funeral pyre. Quote: Between 1943 and 1987, some thirty women in Rajasthan (twenty-eight, accordin ...
. The Court stated that to rule otherwise, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances." If the purpose or effect of a law is to impede the observance of one or all religions, or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.
In ''Cantwell v. Connecticut
''Cantwell v. Connecticut'', 310 U.S. 296 (1940), is a landmark court decision by the United States Supreme Court holding that the First Amendment's ''federal'' protection of religious free exercise incorporates via the Due Process Clause of t ...
'' (1940), the Court held that the Due Process Clause of the Fourteenth Amendment applied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute. Religious freedom is a universal right of all human beings and all religions, providing for the free exercise of religion or ''free exercise equality''. Due to its nature as fundamental to the American founding and to the ordering of human society, it is rightly seen as a capricious right, i.e. universal, broad, and deep—though not absolute. Justice Field put it clearly in ''Davis v. Beason
__NOTOC__
''Davis v. Beason'', 133 U.S. 333 (1890), was a United States Supreme Court case affirming, by a 9–0 vote, that federal laws against polygamy did not conflict with the free exercise clause of the First Amendment to the United States Co ...
'' (1890): "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation." Furthermore, the Supreme Court in ''Employment Division v. Smith
''Employment Division, Department of Human Resources of Oregon v. Smith'', 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on t ...
'' made clear that "the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." '' United States v. Lee'', 455 U. S. 252, 455 U. S. 263, n. 3 (1982) ( STEVENS, J., concurring in judgment); ''see Minersville School Dist. Bd. of Educ. v. Gobitis, supra'', 310 U.S. at 310 U. S. 595 (collecting cases)." ''Smith'' also set the precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
"that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion."
To accept any creed or the practice of any form of worship can't be compelled by laws, because, as stated by the Supreme Court in ''Braunfeld v. Brown
''Braunfeld v. Brown'', 366 U.S. 599 (1961), was a landmark case on the issue of religious and economic liberty decided by the United States Supreme Court. In a 6–3 decision, the Court held that a Pennsylvania blue law forbidding the sale of ...
'' (1961), the freedom to hold religious beliefs and opinions is absolute. Federal or state legislation can't therefore make it a crime to hold any religious belief or opinion due to the Free Exercise Clause. Legislation by the United States or any constituent state of the United States which forces anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets is also barred by the Free Exercise Clause. Against this background, the Supreme Court stated that Free Exercise Clause broadly protects religious beliefs and opinions:
The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." ''Sherbert v. Verner
''Sherbert v. Verner'', 374 U.S. 398 (1963), was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in ...
'' supra, 374 U.S. at 374 U. S. 402. The government may not compel affirmation of religious belief, see ''Torcaso v. Watkins
''Torcaso v. Watkins'', 367 U.S. 488 (1961), was a United States Supreme Court case in which the court reaffirmed that the United States Constitution prohibits states and the federal government from requiring any kind of religious test for pub ...
'', 367 U. S. 488 (1961), punish the expression of religious doctrines it believes to be false, ''United States v. Ballard
''United States v. Ballard'', 322 U.S. 78 (1944), was a United States Supreme Court case from the October 1943 term.
The case arose from the appeal of the conviction of two leaders of the new religious "I AM" Activity movement for fraudulently s ...
'', 322 U. S. 78, 322 U. S. 86–88 (1944), impose special disabilities on the basis of religious views or religious status, see ''McDaniel v. Paty
''McDaniel v. Paty'', 435 U.S. 618 (1978), was a United States Supreme Court case that struck down the last remaining state restriction against religious ministers holding elected office.
Background
McDaniel was a Baptist minister from Chattan ...
'', 435 U. S. 618 (1978); ''Fowler v. Rhode Island
''Fowler v. Rhode Island'', 345 U.S. 67 (1953), was a case in which the Supreme Court of the United States held that a municipal ordinance which was used to penalize a minister of Jehovah's Witnesses for preaching at a peaceful religious meeting ...
'', 345 U. S. 67, 345 U. S. 69 (1953); cf. ''Larson v. Valente'', 456 U. S. 228, 456 U. S. 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see ''Presbyterian Church v. Hull Church
''Presbyterian Church v. Hull Church'', 393 U.S. 440 (1969), was a Supreme Court of the United States, United States Supreme Court case involving the secession of two local churches, including Hull Memorial Presbyterian Church, from the parent bod ...
'', 393 U. S. 440, 393 U. S. 445–452 (1969); ''Kedroff v. St. Nicholas Cathedral'', 344 U. S. 94, 344 U. S. 95–119 (1952); ''Serbian Eastern Orthodox Diocese v. Milivojevich
''Serbian Orthodox Diocese v. Milivojevich'', 426 U.S. 696 (1976), is a United States Supreme Court case in which the Court held that the judicial determination of the Illinois Supreme Court violated the First Amendment and Fourteenth Amendments ...
'', 426 U. S. 696, 426 U. S. 708–725 (1976). But the "exercise of religion" often involves not only belief
A belief is an attitude that something is the case, or that some proposition is true. In epistemology, philosophers use the term "belief" to refer to attitudes about the world which can be either true or false. To believe something is to take i ...
and profession
A profession is a field of work that has been successfully ''professionalized''. It can be defined as a disciplined group of individuals, '' professionals'', who adhere to ethical standards and who hold themselves out as, and are accepted by ...
but the performance of (or abstention from) physical acts: assembling with others for a worship service
A church service (or a service of worship) is a formalized period of Christian communal worship
Worship is an act of religious devotion usually directed towards a deity. It may involve one or more of activities such as veneration, adorat ...
, participating in sacramental use of bread and wine, proselytizing
Proselytism () is the policy of attempting to convert people's religious or political beliefs. Proselytism is illegal in some countries.
Some draw distinctions between ''evangelism'' or '' Da‘wah'' and proselytism regarding proselytism as invol ...
, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be "prohibiting the free exercise f religion if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf
According to the Bible, the golden calf (עֵגֶל הַזָּהָב '' ‘ēgel hazzāhāv'') was an idol (a cult image) made by the Israelites when Moses went up to Mount Sinai. In Hebrew, the incident is known as ''ḥēṭə’ hā‘ēgel'' ...
."
In ''Sherbert v. Verner
''Sherbert v. Verner'', 374 U.S. 398 (1963), was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in ...
'' (1963), the Supreme Court required states to meet the "strict scrutiny
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
" standard when refusing to accommodate religiously motivated conduct. This meant the government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina
)''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no)
, anthem = " Carolina";" South Carolina On My Mind"
, Former = Province of South Carolina
, seat = Columbia
, LargestCity = Charleston
, LargestMetro = ...
because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist
The Seventh-day Adventist Church is an Adventism, Adventist Protestantism, Protestant Christian denomination which is distinguished by its observance of Saturday, the Names of the days of the week#Numbered days of the week, seventh day of the ...
faith. In ''Wisconsin v. Yoder
''Wisconsin v. Jonas Yoder'', 406 U.S. 205 (1972), is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade. The parents' fundamental right to freedom of religion ...
'' (1972), the Court ruled that a law which "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face", would be unconstitutional.
The need for a compelling governmental interest was narrowed in ''Employment Division v. Smith
''Employment Division, Department of Human Resources of Oregon v. Smith'', 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on t ...
'' (1990), which held no such interest was required under the Free Exercise Clause regarding a neutral law of general applicability that happens to affect a religious practice, as opposed to a law that targets a particular religious practice (which does require a compelling governmental interest). In ''Church of Lukumi Babalu Aye v. City of Hialeah
''Church of the Lukumi Babalu Aye, Inc. v. Hialeah'', 508 U.S. 520 (1993), was a case in which the Supreme Court of the United States held that an ordinance passed in Hialeah, Florida, forbidding the "unnecessar killing of "an animal in a public ...
'' (1993), in which the meaning of "neutral law of general applicability" was elaborated by the court, the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería
Santería (), also known as Regla de Ocha, Regla Lucumí, or Lucumí, is an African diaspora religions, African diasporic religion that developed in Cuba during the late 19th century. It arose through a process of syncretism between the tradit ...
religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable", the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional. In this case the Supreme Court also stated that inquiries whether laws discriminate based on religion doesn't end with the text of the laws at issue. Facial neutrality of laws (i.e. laws which are apparently neutral in their language but in reality discriminate against a particular group) is not determinative in these inquiries, because both the Free Exercise Clause and the Establishment Clause extends beyond facial discrimination. The Supreme Court explained that " ficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" and " e Free Exercise Clause protects against governmental hostility which is masked as well as overt." The neutrality of a law is also suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation. The Court also observed: "The Free Exercise Clause "protect religious observers against unequal treatment," ''Hobbie v. Unemployment Appeals Comm'n of Fla.'', 480 U. S. 136, 148 (1987) (STEVENS, J., concurring in judgment), and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause."
In 1993, the Congress passed the Religious Freedom Restoration Act
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at through (also known as RFRA, pronounced "rifra"), is a 1993 United States federal law that "ensures that interests in religiou ...
(RFRA), seeking to restore the compelling interest requirement applied in ''Sherbert'' and ''Yoder''. In ''City of Boerne v. Flores
''City of Boerne v. Flores'', 521 U.S. 507 (1997), was a landmark decision of the Supreme Court of the United States concerning the scope of Congress's power of enforcement under Section 5 of the Fourteenth Amendment. The case also had a signific ...
'' (1997), the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. Congress can enact legislation to expand First Amendment free exercise rights through its enforcement powers in Section 5 of the Fourteenth Amendment, but to do so "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." The decision in ''City of Boerne'' struck down the Religious Freedom Restoration Act RFRA in so far as it applied to states and other local municipalities within them., so that partly in response to it 21 states enacted State Religious Freedom Restoration Acts
State Religious Freedom Restoration Acts are state laws based on the Religious Freedom Restoration Act (RFRA), a federal law that was passed almost unanimously by the U.S. Congress in 1993 and signed into law by President Bill Clinton. The laws ma ...
since 1993. According to the court's ruling in '' Gonzales v. UDV'' (2006), RFRA remains applicable to federal laws and so those laws must still have a "compelling interest."
RFRA secures Congress’ view of the right to free exercise under the First Amendment, and it provides a remedy to redress violations of that right. The Supreme Court decided in light of this in ''Tanzin v. Tanvir
''Tanzin v. Tanvir'', 592 U.S. ___ (2020), was a United States Supreme Court case involving legal remedies that could be sought by litigants against federal officials for violations of the Religious Freedom Restoration Act of 1993. In a unanimous ...
'' (2020) that the Religious Freedom Restoration Act's express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. This decision is significant "not only for the plaintiffs but also for cases involving violations of religious rights more broadly." In the 1982 U.S. Supreme Court case ''United States v. Lee (1982)
''United States v. Lee'', 455 U.S. 252 (1982), was a United States Supreme Court case establishing precedent regarding the limits of free exercise of religious conscience by employers.
Background
The appellant, an Amish employer, sued the Federa ...
'' (1982) the Court declared: "Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." The Supreme Court in ''Estate of Thornton v. Caldor, Inc.
''Estate of Thornton v. Caldor, Inc.'', 472 U.S. 703 (1985), was a Supreme Court of the United States, United States Supreme Court case in which the Court held that a state statute providing employees with an absolute right not to work on their ch ...
'' (1985) echoed this statement by quoting Judge Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
from his 1953 case ''Otten v. Baltimore & Ohio R. Co.'', 205 F.2d 58, 61 (CA2 1953): "The First Amendment ... gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his own religious necessities." In ''Burwell v. Hobby Lobby Stores, Inc.
''Burwell v. Hobby Lobby Stores, Inc.'', 573 U.S. 682 (2014), is a List of landmark court decisions in the United States, landmark decision in United States corporate law by the Supreme Court of the United States, United States Supreme Court allow ...
'' (2014) the Supreme Court had to decide, with a view to the First Amendment's Free Exercise Clause and the federal Religious Freedom Restoration Act, "the profound cultural question of whether a private, profit-making business organized as a corporation can "exercise" religion and, if it can, how far that is protected from government interference." The Court decided that closely held, for-profit corporations have free exercise rights under the RFRA, but its decision was not based on the constitutional protections of the First Amendment.
In '' Locke v. Davey'' (2004), the Court stated, " ven the historic and substantial state interest at issue, it cannot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect", explaining that denying funding a scholarship when it was going to be used for education in theology and when that state's constitution forbids state aid to religious institutions "was not presumptively unconstitutional, because the state was neither criminalizing nor penalizing the study of theology." The Court ruled therefore that a state has a "substantial state interest" in denying funding a scholarship when it was going to be used for education in theology and when that state's constitution forbids state aid to religious institutions. In ''Trinity Lutheran Church of Columbia, Inc. v. Comer
''Trinity Lutheran Church of Columbia, Inc. v. Comer'', 582 U.S. ___ (2017), was a case in which the Supreme Court of the United States held that a Missouri program that denied a grant to a religious school for playground resurfacing, while provid ...
'' (2017), the Court ruled that denying a generally available public benefit on account of the religious nature of an institution violates the Free Exercise Clause. In ''Espinoza v. Montana Department of Revenue
''Espinoza v. Montana Department of Revenue'', 591 U.S. ___ (2020), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, United States Supreme Court case in which the Court ruled that a state-ba ...
'' (2020), the Court ruled that the Free Exercise Clause forbad a state from denying a tax credit
A tax credit is a tax incentive which allows certain taxpayers to subtract the amount of the credit they have accrued from the total they owe the state. It may also be a credit granted in recognition of taxes already paid or a form of state "disc ...
on the basis of a Blaine Amendment in that state's constitution, which the Court said is subject to the "strictest scrutiny" and can only survive if it is "narrowly tailored" to promote "interests of the highest order". Citing ''Lyng v. Northwest Indian Cemetery Protective Association
''Lyng v. Northwest Indian Cemetery Protective Association'', 485 U.S. 439 (1988), was a Supreme Court of the United States, United States Supreme Court List of landmark court decisions in the United States, landmark case in which the Court ruled ...
'' (1988) the Supreme Court decided in the ''Espinoza '' follow-up case ''Carson v. Makin
''Carson v. Makin'', 596 U.S. ___ (2022), was a United States Supreme Court case related to the First Amendment to the United States Constitution and the Free Exercise Clause. It was a follow-up to ''Espinoza v. Montana Department of Revenue''.
...
'' (2022) that the Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”
Freedom of speech and of the press
The First Amendment broadly protects the rights of free speech and free press. Free speech means the free and public expression of opinions without censorship, interference, or restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. Free press means the right of individuals to express themselves through publication and dissemination of information, ideas, and opinions without interference, constraint, or prosecution by the government. In ''Murdock v. Pennsylvania
''Murdock v. Pennsylvania'', 319 U.S. 105 (1943), was a case in which the Supreme Court of the United States held that an ordinance requiring door-to-door salespersons ("solicitors") to purchase a license was an unconstitutional tax on religious e ...
'' (1943), the Supreme Court stated that "Freedom of press, freedom of speech, freedom of religion are in a preferred position.". The Court added that a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying, or distasteful. That would be a complete repudiation of the philosophy of the Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
, according to the Court. In '' Stanley v. Georgia'' (1969), the Supreme Court stated that the First Amendment protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's own thoughts.
The Supreme Court of the United States characterized the rights of free speech and free press as fundamental personal rights and liberties and noted that the exercise of these rights lies at the foundation of free government by free men. In '' Bond v. Floyd'' (1966), a case involving the Constitutional shield around the speech of elected officials, the Supreme Court declared that the First Amendment central commitment is that, in the words of ''New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
'' (1964), "debate on public issues should be uninhibited, robust, and wide-open." The Court further explained that just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The Supreme Court in ''Chicago Police Dept. v. Mosley
''Chicago Police Dept. v. Mosley'', 408 U.S. 92 (1972), was a Supreme Court of the United States, United States Supreme Court case which concerned freedom of speech under the First Amendment to the United States Constitution, First Amendment. Oral ...
'' (1972) said:
"But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. ... To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.""
The level of protections with respect to free speech and free press given by the First Amendment is not limitless. As stated in his concurrence in ''Chicago Police Dept. v. Mosley'' (1972), Chief Justice Warren E. Burger said:
"Numerous holdings of this Court attest to the fact that the First Amendment does not literally mean that we "are guaranteed the right to express any thought, free from government censorship." This statement is subject to some qualifications, as for example those of ''Roth v. United States
''Roth v. United States'', 354 U.S. 476 (1957), along with its companion case ''Alberts v. California'', was a landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes o ...
'', 354 U. S. 476 (1957); ''Chaplinsky v. New Hampshire
''Chaplinsky v. New Hampshire'', 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
Background
...
'', 315 U. S. 568 (1942). See also ''New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
'', 376 U. S. 254 (1964)."
Attached to the core rights of free speech and free press are several peripheral rights that make these core rights more secure. The peripheral rights encompass not only freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membe ...
, including privacy
Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.
The domain of privacy partially overlaps with security, which can include the concepts of a ...
in one's associations, but also, in the words of ''Griswold v. Connecticut
''Griswold v. Connecticut'', 381 U.S. 479 (1965), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives withou ...
'' (1965), " the freedom of the entire university community", i.e., the right to distribute, the right to receive, and the right to read, as well as freedom of inquiry, freedom of thought
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency by ...
, and freedom to teach. The United States Constitution protects, according to the Supreme Court in '' Stanley v. Georgia'' (1969), the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts. As stated by the Court in ''Stanley'': "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."
Wording of the clause
The First Amendment bars Congress from "abridging the freedom of speech, or of the press". U.S. Supreme Court Justice John Paul Stevens
John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
commented about this phraseology in a 1993 journal article: "I emphasize the word 'the' in the term 'the freedom of speech' because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech." Stevens said that, otherwise, the clause might absurdly immunize things like false testimony under oath. Like Stevens, journalist Anthony Lewis
Anthony Lewis (March 27, 1927 – March 25, 2013) was an American public intellectual and journalist. He was twice winner of the Pulitzer Prize, and was a columnist for ''The New York Times''. He is credited with creating the field of legal jour ...
wrote: "The word 'the' can be read to mean what was understood at the time to be included in the concept of free speech." But what was understood at the time is not 100% clear. In the late 1790s, the lead author of the speech and press clauses, James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
, argued against narrowing this freedom to what had existed under English common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
:
The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.[Dry, Murray. Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism]
pp. 68–70
(Lexington Books 2004).
Madison wrote this in 1799, when he was in a dispute about the constitutionality of the Alien and Sedition Laws, which was legislation enacted in 1798 by President John Adams
John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
' Federalist Party
The Federalist Party was a Conservatism in the United States, conservative political party which was the first political party in the United States. As such, under Alexander Hamilton, it dominated the national government from 1789 to 1801.
De ...
to ban seditious libel
Sedition and seditious libel were criminal offences under English common law, and are still criminal offences in Canada. Sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection a ...
. Madison believed that legislation to be unconstitutional, and his adversaries in that dispute, such as John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
, advocated the narrow freedom of speech that had existed in the English common law.
Speech critical of the government
The Supreme Court declined to rule on the constitutionality
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of any federal law regarding the Free Speech Clause until the 20th century. For example, the Supreme Court never ruled on the Alien and Sedition Acts
The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
; three Supreme Court justices riding circuit
In the United States, circuit riding was the practice of a judge, sometimes referred to as a circuit rider, traveling to a judicial district (referred to as a circuit) to preside over court cases there. A defining feature of American federal cour ...
presided over sedition trials without indicating any reservations. The leading critics of the law, Vice President Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment and other Constitutional provisions. Jefferson succeeded Adams as president, in part due to the unpopularity of the latter's sedition prosecutions; he and his party quickly overturned the Acts and pardoned those imprisoned by them. In the majority opinion in ''New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
'' (1964),['']New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
'', the Court noted the importance of this public debate as a precedent in First Amendment law and ruled that the Acts had been unconstitutional: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."
World War I
During the patriotic fervor of World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...
and the First Red Scare
The First Red Scare was a period during History of the United States (1918–1945), the early 20th-century history of the United States marked by a widespread fear of Far-left politics, far-left movements, including Bolshevik, Bolshevism and ...
, the Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States". Specifically, the Espionage Act of 1917 states that if anyone allows any enemies to enter or fly over the United States and obtain information from a place connected with the national defense, they will be punished. Hundreds of prosecutions followed. In 1919, the Supreme Court heard four appeals resulting from these cases: ''Schenck v. United States
''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...
'', ''Debs v. United States
''Debs v. United States'' 249 U.S. 211 (1919) was a United States Supreme Court decision, relevant for US labor law and constitutional law, that upheld the Espionage Act of 1917.
Facts
Eugene V. Debs was an American labor and political leader an ...
'', '' Frohwerk v. United States'', and ''Abrams v. United States
''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...
''.
In the first of these cases, Socialist Party of America
The Socialist Party of America (SPA) was a socialist political party in the United States formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party of Ameri ...
official Charles Schenck
''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...
had been convicted under the Espionage Act for publishing leaflets urging resistance to the draft. Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. In ''Schenck v. United States'', the Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction. Debate continued over whether ''Schenck'' went against the right to freedom of speech protected by the First Amendment. Justice Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
, writing for the Court, explained that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger
''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to ''The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in t ...
that they will bring about the substantive evils that Congress has a right to prevent." One week later, in ''Frohwerk v. United States'', the court again upheld an Espionage Act conviction, this time that of a journalist who had criticized U.S. involvement in foreign wars.
In ''Debs v. United States'', the Court elaborated on the "clear and present danger" test established in ''Schenck''. On June 16, 1918, Eugene V. Debs
Eugene Victor "Gene" Debs (November 5, 1855 – October 20, 1926) was an American socialism, socialist, political activist, trade unionist, one of the founding members of the Industrial Workers of the World (IWW), and five times the candidate ...
, a political activist, delivered a speech in Canton, Ohio
Canton () is a city in and the county seat of Stark County, Ohio. It is located approximately south of Cleveland and south of Akron in Northeast Ohio. The city lies on the edge of Ohio's extensive Amish country, particularly in Holmes and ...
, in which he spoke of "most loyal comrades were paying the penalty to the working class—these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft." Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger", taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services". In ''Abrams v. United States'', four Russian refugees appealed their conviction for throwing leaflets from a building in New York; the leaflets argued against President Woodrow Wilson
Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
's intervention in Russia against the October Revolution
The October Revolution,. officially known as the Great October Socialist Revolution. in the Soviet Union, also known as the Bolshevik Revolution, was a revolution in Russia led by the Bolshevik Party of Vladimir Lenin that was a key moment ...
. The majority upheld their conviction, but Holmes and Justice Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
dissented, holding that the government had demonstrated no "clear and present danger" in the four's political advocacy.
Extending protections
The Supreme Court denied a number of Free Speech Clause claims throughout the 1920s, including the appeal of a labor organizer, Benjamin Gitlow, who had been convicted after distributing a manifesto calling for a "revolutionary dictatorship of the proletariat". In ''Gitlow v. New York
''Gitlow v. New York'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...
'' (1925), the Court upheld the conviction, but a majority also found that the First Amendment applied to state laws as well as federal laws, via the Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the Fourteenth Amendment. Holmes and Brandeis dissented in several more cases in this decade, however, advancing the argument that the Free Speech Clause protected a far greater range of political speech than the Court had previously acknowledged. In '' Whitney v. California'' (1927), in which Communist Party USA
The Communist Party USA, officially the Communist Party of the United States of America (CPUSA), is a communist party in the United States which was established in 1919 after a split in the Socialist Party of America following the Russian Revo ...
organizer Charlotte Anita Whitney
Charlotte Anita Whitney (July 7, 1867 – February 4, 1955), best known as "Anita Whitney", was an American women's rights activist, political activist, suffragist, and early Communist Labor Party of America and Communist Party USA organizer in ...
had been arrested for "criminal syndicalism Criminal syndicalism has been defined as a doctrine of criminal acts for political, industrial, and social change. These criminal acts include advocation of crime, sabotage, violence, and other unlawful methods of terrorism. Criminal syndicalism la ...
", Brandeis wrote a dissent in which he argued for broader protections for political speech:
Those who won our independence... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
In '' Herndon v. Lowry'' (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon
Angelo Braxton Herndon (May 6, 1913 in Wyoming, Ohio, Wyoming, Ohio – December 9, 1997 in Sweet Home, Arkansas, Sweet Home, Arkansas) was an African-American Labour movement, labor organizer arrested and convicted of insurrection after attempti ...
, who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States. The Court reversed Herndon's conviction, holding that Georgia
Georgia most commonly refers to:
* Georgia (country), a country in the Caucasus region of Eurasia
* Georgia (U.S. state), a state in the Southeast United States
Georgia may also refer to:
Places
Historical states and entities
* Related to the ...
had failed to demonstrate any "clear and present danger" in Herndon's political advocacy. The clear and present danger test was again invoked by the majority in the 1940 ''Thornhill v. Alabama
''Thornhill v. Alabama'', 310 U.S. 88 (1940), is a US labor law case of a Supreme Court of the United States, United States Supreme Court. It reversed the conviction of the president of a local union for violating an Alabama statute that prohibite ...
'' decision in which a state antipicketing law was invalidated.[Killian, Johnny H.; Costello, George; Thomas, Kenneth R., ''The Constitution of the United States of America: Analysis and Interpretation'', Library of Congress, Government Printing Office, 2005, , pp. 1096, 1100.]
Currie, David P., ''The Constitution in the Supreme Court: The Second Century, 1888–1986, Volume 2'', University of Chicago Press, 1994, p. 269, .
Konvitz, Milton Ridvad, ''Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly'', Transaction Publishers, 2003, p. 304, .
Eastland, Terry, ''Freedom of Expression in the Supreme Court: The Defining Cases'', Rowman & Littlefield Publishers, 16. August 2000
p. 47
. The importance of freedom of speech in the context of "clear and present danger" was emphasized in ''Terminiello v. City of Chicago
''Terminiello v. City of Chicago'', 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a " breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites disput ...
'' (1949) where the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion.[''Terminiello'', at 4] Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. Restrictions on free speech are only permissible when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Justice William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Although the Court referred to the clear and present danger test in a few decisions following ''Thornhill'', the bad tendency test was not explicitly overruled,[ and the clear and present danger test was not applied in several subsequent free speech cases involving incitement to violence. In 1940, Congress enacted the ]Smith Act
The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3d session, ch. 439, , is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of th ...
, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence". The statute provided law enforcement a tool to combat Communist leaders. Eugene Dennis
Francis Xavier Waldron (August 10, 1905 – January 31, 1961), best known by the pseudonym Eugene Dennis and Tim Ryan, was an American communist politician and union organizer, best remembered as the long-time leader of the Communist Party USA an ...
was convicted in the Foley Square trial
The Smith Act trials of Communist Party leaders in New York City from 1949 to 1958 were the result of Federal government of the United States, US federal government prosecutions in the postwar period and during the Cold War between the Soviet Uni ...
for attempting to organize a Communist Party. In ''Dennis v. United States
''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the ...
'' (1951), the Court upheld the Smith Act. Chief Justice Fred M. Vinson relied on Holmes' "clear and present danger" test as adapted by Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
: "In each case ourtsmust ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger." Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the ''putsch'' is about to be executed, the plans have been laid and the signal is awaited." In a concurring opinion, Justice Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicia ...
proposed a "balancing test", which soon supplanted the "clear and present danger" test:
The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process.
In ''Yates v. United States
''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a " clear and present danger."
Background
...
'' (1957), the Supreme Court limited the Smith Act prosecutions to "advocacy of action" rather than "advocacy in the realm of ideas". Advocacy of abstract doctrine remained protected while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act.
During the Vietnam War
The Vietnam War (also known by #Names, other names) was a conflict in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. It was the second of the Indochina Wars and was officially fought between North Vie ...
, the Court's position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft card
Conscription (also called the draft in the United States) is the state-mandated enlistment of people in a national service, mainly a military service. Conscription dates back to antiquity and it continues in some countries to the present day un ...
s in ''United States v. O'Brien
''United States v. O'Brien'', 391 U.S. 367 (1968), was a landmark decision of the United States Supreme Court, ruling that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Thoug ...
'' (1968), fearing that burning draft cards
Draft-card burning was a symbol of protest performed by thousands of young men in the United States and Australia in the 1960s and early 1970s. The first draft-card burners were American men taking part in the opposition to United States involvem ...
would interfere with the "smooth and efficient functioning" of the draft system, the next year, the court handed down its decision in ''Brandenburg v. Ohio
''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that sp ...
'' (1969), expressly overruling ''Whitney v. California''. ''Brandenburg'' discarded the "clear and present danger" test introduced in ''Schenck'' and further eroded ''Dennis''. Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms:
In ''Cohen v. California
''Cohen v. California'', 403 U.S. 15 (1971), was a landmark decision of the US Supreme Court holding that the First Amendment prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying "Fu ...
'' (1971), the Court voted reversed the conviction of a man wearing a jacket reading "Fuck the Draft" in the corridors of a Los Angeles County
Los Angeles County, officially the County of Los Angeles, and sometimes abbreviated as L.A. County, is the most populous county in the United States and in the U.S. state of California, with 9,861,224 residents estimated as of 2022. It is the ...
courthouse. Justice John Marshall Harlan II
John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish him ...
wrote in the majority opinion that Cohen's jacket fell in the category of protected political speech despite the use of an expletive: "One man's vulgarity is another man's lyric."
Political speech
The ability to publicly criticize even the most prominent politicians and leaders without fear of retaliation is part of the First Amendment, because political speech is core First Amendment speech. As the Supreme Court stated with respect to the judicial branch of the government exemplarily that the First Amendment "prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. ..The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect."
Anonymous speech
In ''Talley v. California
''Talley v. California'', 362 U.S. 60 (1960), was a case in which the Supreme Court of the United States voided a Los Angeles city ordinance which forbade the distribution of any handbills in any place under any circumstances if the handbills ...
'' (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. Justice Hugo Black wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.... Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." In ''McIntyre v. Ohio Elections Commission
''McIntyre v. Ohio Elections Commission'', 514 U.S. 334 (1995), is a case in which the Supreme Court of the United States held that an Ohio statute prohibiting anonymous campaign literature is unconstitutional because it violates the First Amend ...
'' (1995), the Court struck down an Ohio
Ohio () is a state in the Midwestern region of the United States. Of the fifty U.S. states, it is the 34th-largest by area, and with a population of nearly 11.8 million, is the seventh-most populous and tenth-most densely populated. The sta ...
statute that made it a crime to distribute anonymous campaign literature. However, in ''Meese v. Keene'' (1987), the Court upheld the Foreign Agents Registration Act
The Foreign Agents Registration Act (FARA)2 U.S.C. § 611 ''et seq.'' is a United States law that imposes public disclosure obligations on persons representing foreign interests. of 1938, under which several Canadian films were defined as "political propaganda", requiring their sponsors to be identified.
Campaign finance
In ''Buckley v. Valeo
''Buckley v. Valeo'', 424 U.S. 1 (1976), was a landmark decision of the US Supreme Court on campaign finance. A majority of justices held that, as provided by section 608 of the Federal Election Campaign Act of 1971, limits on election expenditu ...
'' (1976), the Supreme Court reviewed the Federal Election Campaign Act
The Federal Election Campaign Act of 1971 (FECA, , ''et seq.'') is the primary United States federal law regulating political campaign fundraising and spending. The law originally focused on creating limits for campaign spending on communicatio ...
of 1971 and related laws, which restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court affirmed the constitutionality of limits on campaign contributions, saying they "serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech".
The court again scrutinized campaign finance regulation in ''McConnell v. Federal Election Commission
''McConnell v. Federal Election Commission'', 540 U.S. 93 (2003), is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act (BCRA), often referred to as the McCain– Feingold Act ...
'' (2003). The case centered on the Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 (, ), commonly known as the McCain–Feingold Act or BCRA (pronounced "bik-ruh"), is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of ...
of 2002 (BCRA), a federal law that imposed new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money
The financing of electoral campaigns in the United States happens at the federal, state, and local levels by contributions from individuals, corporations, political action committees, and sometimes the government. Campaign spending has risen ...
by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which the Court agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures". The Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on ''Tinker v. Des Moines Independent Community School District
''Tinker v. Des Moines Independent Community School District'', 393 U.S. 503 (1969), was a landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools. The ''Tinker'' test, also ...
''.
In ''Federal Election Commission v. Wisconsin Right to Life, Inc.
''Federal Election Commission v. Wisconsin Right to Life, Inc.'', 551 U.S. 449 (2007), is a Supreme Court of the United States, United States Supreme Court case in which the Court held that issue ads may not be banned from the months preceding a pr ...
'' (2007), the Court sustained an "as applied" challenge to BCRA, holding that issue ads may not be banned from the months preceding a primary or general election. In ''Davis v. Federal Election Commission
''Davis v. Federal Election Commission'', 554 U.S. 724 (2008), is a decision by the Supreme Court of the United States which held that section 319 (popularly known as the "Millionaire's Amendment") of the Bipartisan Campaign Reform Act of 2002 (pop ...
'' (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his or her own money violated the freedom of speech of the self-financing candidate.
In '' Citizens United v. Federal Election Commission'' (2010), the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled '' Austin v. Michigan Chamber of Commerce'' (1990), which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of ''McConnell'' that upheld such restrictions under the BCRA. In other words, the ruling was considered to hold that "political spending is a form of protected speech under the First Amendment".
In ''McCutcheon v. Federal Election Commission
''McCutcheon v. Federal Election Commission'', 572 U.S. 185 (2014), was a landmark decision of the US Supreme Court on campaign finance. The decision held that Section 441 of the Federal Election Campaign Act of 1971, which imposed a limit on c ...
'' (2014), the Court ruled that federal aggregate limits on how much a person can donate to candidate
A candidate, or nominee, is the prospective recipient of an award or honor, or a person seeking or being considered for some kind of position; for example:
* to be elected to an office — in this case a candidate selection procedure occurs.
* t ...
s, political parties, and political action committees, combined respectively in a two-year period known as an "election cycle", violated the Free Speech Clause of the First Amendment.
Flag desecration
The divisive issue of flag desecration
Flag desecration is the desecration of a flag, violation of flag protocol, or various acts that intentionally destroy, damage, or mutilate a flag in public. In the case of a national flag, such action is often intended to make a political poin ...
as a form of protest first came before the Supreme Court in ''Street v. New York
''Street v. New York'', 394 U.S. 576 (1969), was a United States Supreme Court case in which the Court held that a New York state law making it a crime "publicly omutilate, deface, defile, or defy, trample upon, or cast contempt upon either by w ...
'' (1969). In response to hearing an erroneous report of the murder of civil rights activist James Meredith
James Howard Meredith (born June 25, 1933) is an American civil rights activist, writer, political adviser, and Air Force veteran who became, in 1962, the first African-American student admitted to the racially segregated University of Mississ ...
, Sidney Street burned a 48-star U.S. flag. Street was arrested and charged with a New York state law making it a crime "publicly omutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act ny flag of the United States. The Court, relying on ''Stromberg v. California
''Stromberg v. California'', 283 U.S. 359 (1931), was a landmark decision of the Supreme Court of the United States in which the Court held, 7–2, that a California statute banning red flags was unconstitutional because it violated the First an ...
'' (1931), found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate he had been convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist dthe pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.
The ambiguity with regard to flag-burning statutes was eliminated in ''Texas v. Johnson
''Texas v. Johnson'', 491 U.S. 397 (1989), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that burning the American flag was protected speech under the First Amendment to the Constitution, as do ...
'' (1989). In that case, Gregory Lee Johnson
Gregory Lee "Joey" Johnson (born 1956) is an American political activist affiliated with the Revolutionary Communist Party USA. His burning of the flag of the United States in a political demonstration during the 1984 Republican National Conven ...
burned an American flag at a demonstration during the 1984 Republican National Convention
The 1984 Republican National Convention convened on August 20 to August 23, 1984, at Dallas Convention Center in downtown Dallas, Texas. The convention nominated President Ronald W. Reagan and Vice President George H. W. Bush for reelection.
I ...
in Dallas
Dallas () is the List of municipalities in Texas, third largest city in Texas and the largest city in the Dallas–Fort Worth metroplex, the List of metropolitan statistical areas, fourth-largest metropolitan area in the United States at 7.5 ...
, Texas. Charged with violating a Texas law prohibiting the vandalizing of venerated objects, Johnson was convicted, sentenced to one year in prison, and fined $2,000. The Supreme Court reversed his conviction. Justice William J. Brennan, Jr.
William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the List of United States Supreme Cou ...
wrote in the decision that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Congress then passed a federal law barring flag burning, but the Supreme Court struck it down as well in ''United States v. Eichman
''United States v. Eichman'', 496 U.S. 310 (1990), was a United States Supreme Court case that invalidated a federal law against flag desecration as a violation of free speech under the First Amendment. It was argued together with the case ''Unite ...
'' (1990). A Flag Desecration Amendment
The Flag Desecration Amendment (often referred to as the Flag-Burning Amendment) is a proposed addition to the Constitution of the United States that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical " ...
to the U.S. Constitution has been proposed repeatedly in Congress since 1989, and in 2006 failed to pass the Senate by a single vote.
Falsifying military awards
While the unauthorized wear or sale of the Medal of Honor
The Medal of Honor (MOH) is the United States Armed Forces' highest military decoration and is awarded to recognize American soldiers, sailors, marines, airmen, guardians and coast guardsmen who have distinguished themselves by acts of valor. ...
has been a punishable offense under federal law since the early twentieth century, the Stolen Valor Act criminalized the act of not only wearing, but also verbally claiming entitlement to military awards
A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...
a person did not in fact earn. In ''United States v. Alvarez
''United States v. Alvarez'', 567 U.S. 709 (2012), is a landmark decision in which the Supreme Court of the United States ruled that the Stolen Valor Act of 2005 was unconstitutional. The Stolen Valor Act of 2005 was a federal law that criminaliz ...
'' (2012), the Supreme Court struck down the Act, ruling that the First Amendment bars the government from punishing people for making false claims regarding military service or honors where the false claim was not "made to effect a fraud or secure moneys or other valuable considerations". The Supreme Court could not agree on a single rationale for its decision.
Compelled speech
The Supreme Court has determined that the First Amendment also protects citizens from being compelled by the government to say or to pay for certain speech.
In '' West Virginia State Board of Education v. Barnette'' (1943), the Court ruled that school children could not be punished for refusing either to say the pledge of allegiance
The Pledge of Allegiance of the United States is a patriotic recited verse that promises allegiance to the flag of the United States and the republic of the United States of America. The first version, with a text different from the one used ...
or salute the American flag
The national flag of the United States of America, often referred to as the ''American flag'' or the ''U.S. flag'', consists of thirteen equal horizontal stripes of red (top and bottom) alternating with white, with a blue rectangle in the c ...
. The Court also overruled '' Minersville School District v. Gobitis'' (1940), which had upheld such punishments of school children.
In ''National Institute of Family and Life Advocates v. Becerra
''National Institute of Family and Life Advocates v. Becerra'', 585 U.S. ___ (2018), was a case before the Supreme Court of the United States addressing the constitutionality of California's FACT Act, which mandated that crisis pregnancy centers ...
'' (2018), the Court ruled that a California law requiring crisis pregnancy center
A crisis pregnancy center (CPC), sometimes called a pregnancy resource center (PRC) or a pro-life pregnancy center, is a type of nonprofit organization established by anti-abortion groups primarily to persuade pregnant women against having an ab ...
s to post notices informing patients they can obtain free or low-cost abortions and include the number of the state agency that can connect the women with abortion providers violated those centers' right to free speech.
In '' Janus v. AFSCME'' (2018), the Court ruled that requiring a public sector
The public sector, also called the state sector, is the part of the economy composed of both public services and public enterprises. Public sectors include the public goods and governmental services such as the military, law enforcement, infra ...
employee to pay dues to a union to which he is not a member violated the First Amendment. According to the Court, "the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay." The Court also overruled ''Abood v. Detroit Board of Education
''Abood v. Detroit Board of Education'', 431 U.S. 209 (1977), was a US labor law case where the United States Supreme Court upheld the maintaining of a union shop in a public workplace. Public school teachers in Detroit had sought to overturn the ...
'' (1977), which had upheld legally obligating public sector employees to pay such dues.
Commercial speech
Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Court uses a list of four indicia:
# The contents do "no more than propose a commercial transaction".
# The contents may be characterized as advertisements.
# The contents reference a specific product.
# The disseminator is economically motivated to distribute the speech.
Alone, each indicium does not compel the conclusion that an instance of speech is commercial; however, " e combination of ''all'' these characteristics... provides strong support for... the conclusion that the peech isproperly characterized as commercial speech."
In '' Valentine v. Chrestensen'' (1942), the Court upheld a New York City ordinance forbidding the "distribution in the streets of commercial and business advertising matter", ruling the First Amendment protection of free speech did not include commercial speech.
In '' Virginia State Pharmacy Board v. Virginia Citizens Consumer Council'' (1976), the Court overturned ''Valentine'' and ruled that commercial speech was entitled to First Amendment protection:
In ''Ohralik v. Ohio State Bar Association'' (1978), the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech:
In '' Central Hudson Gas & Electric Corp. v. Public Service Commission'' (1980), the Court clarified what analysis was required before the government could justify regulating commercial speech:
# Is the expression protected by the First Amendment? Lawful? Misleading? Fraud?
# Is the asserted government interest substantial?
# Does the regulation directly advance the governmental interest asserted?
# Is the regulation more extensive than is necessary to serve that interest?
Six years later, the U.S. Supreme Court, applying the ''Central Hudson'' standards in '''' (1986), affirmed the Supreme Court of Puerto Rico
The Supreme Court of Puerto Rico ( es, Tribunal Supremo de Puerto Rico) is the highest court of Puerto Rico, having judicial authority to interpret and decide questions of Puerto Rican law. The Court is analogous to one of the state supreme cou ...
's conclusion that Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and Unincorporated ...
's ''Games of Chance Act of 1948'', including the regulations thereunder, was not facially unconstitutional. The lax interpretation of ''Central Hudson'' adopted by ''Posadas'' was soon restricted under ''44 Liquormart, Inc. v. Rhode Island
''44 Liquormart, Inc. v. Rhode Island'', 517 U.S. 484 (1996), was a United States Supreme Court case in which the Court held that a complete ban on the advertising of alcohol prices was unconstitutional under the First Amendment, and that the Tw ...
'' (1996), when the Court invalidated a Rhode Island
Rhode Island (, like ''road'') is a U.S. state, state in the New England region of the Northeastern United States. It is the List of U.S. states by area, smallest U.S. state by area and the List of states and territories of the United States ...
law prohibiting the publication of liquor prices.
School speech
In ''Tinker v. Des Moines Independent Community School District'' (1969), the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War. The Court ruled that the school could not restrict symbolic speech that did not "materially and substantially" interrupt school activities. Justice Abe Fortas
Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhod ...
wrote:
In '' Healy v. James'' (1972), the Court ruled that Central Connecticut State College's refusal to recognize a campus chapter of Students for a Democratic Society
Students for a Democratic Society (SDS) was a national student activist organization in the United States during the 1960s, and was one of the principal representations of the New Left. Disdaining permanent leaders, hierarchical relationships ...
was unconstitutional, reaffirming ''Tinker''.
However, since 1969 the Court has also placed several limitations on ''Tinker''. In '' Bethel School District v. Fraser'' (1986), the Court ruled that a student could be punished for his sexual-innuendo-laced speech before a school assembly and, in ''Hazelwood v. Kuhlmeier
''Hazelwood School District et al. v. Kuhlmeier et al.'', 484 U.S. 260 (1988), was a landmark decision by the Supreme Court of the United States that held that public school curricular student newspapers that have not been established as forum ...
'' (1988), the Court found that schools need not tolerate student speech that is inconsistent with their basic educational mission. In '' Morse v. Frederick'' (2007), the Court ruled that schools could restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use".
In 2014, the University of Chicago
The University of Chicago (UChicago, Chicago, U of C, or UChi) is a private research university in Chicago, Illinois. Its main campus is located in Chicago's Hyde Park neighborhood. The University of Chicago is consistently ranked among the b ...
released the " Chicago Statement", a free speech policy statement designed to combat censorship on campus. This statement was later adopted by a number of top-ranked universities including Princeton University
Princeton University is a private university, private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth, New Jersey, Elizabeth as the College of New Jersey, Princeton is the List of Colonial Colleges, fourth-oldest ins ...
, Washington University in St. Louis
Washington University in St. Louis (WashU or WUSTL) is a private research university with its main campus in St. Louis County, and Clayton, Missouri. Founded in 1853, the university is named after George Washington. Washington University is r ...
, Johns Hopkins University
Johns Hopkins University (Johns Hopkins, Hopkins, or JHU) is a private university, private research university in Baltimore, Maryland. Founded in 1876, Johns Hopkins is the oldest research university in the United States and in the western hem ...
, and Columbia University
Columbia University (also known as Columbia, and officially as Columbia University in the City of New York) is a private research university in New York City. Established in 1754 as King's College on the grounds of Trinity Church in Manhatt ...
.
Internet access
In '' Packingham v. North Carolina'' (2017), the Supreme Court held that a North Carolina
North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...
law prohibiting registered sex offenders
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
from accessing various websites impermissibly restricted lawful speech in violation of the First Amendment. The Court held that "a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more."
Obscenity
According to the U.S. Supreme Court, the First Amendment's protection of free speech does not apply to obscene speech. Therefore, both the federal government and the states have tried to prohibit or otherwise restrict obscene speech, in particular the form that is called pornography. , pornography, except for child pornography, is in practice free of governmental restrictions in the United States, though pornography about "extreme" sexual practices is occasionally prosecuted. The change in the twentieth century, from total prohibition in 1900 to near-total tolerance in 2000, reflects a series of court cases involving the definition of obscenity. The U.S. Supreme Court has found that most pornography is not obscene, a result of changing definitions of both obscenity and pornography. The legal tolerance also reflects changed social attitudes: one reason there are so few prosecutions for pornography is that juries will not convict.
In '' Rosen v. United States'' (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, ''Regina v. Hicklin'' (1868). The ''Hicklin'' test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall". In the early twentieth century, literary works including ''An American Tragedy
''An American Tragedy'' is a 1925 novel by American writer Theodore Dreiser. He began the manuscript in the summer of 1920, but a year later abandoned most of that text. It was based on the notorious murder of Grace Brown in 1906 and the trial of ...
'' (Theodore Dreiser
Theodore Herman Albert Dreiser (; August 27, 1871 – December 28, 1945) was an American novelist and journalist of the naturalist school. His novels often featured main characters who succeeded at their objectives despite a lack of a firm mora ...
, 1925) and ''Lady Chatterley's Lover
''Lady Chatterley's Lover'' is the last novel by English author D. H. Lawrence, which was first published privately in 1928, in Italy, and in 1929, in France. An unexpurgated edition was not published openly in the United Kingdom until 1960, w ...
'' (D.H. Lawrence
David Herbert Lawrence (11 September 1885 – 2 March 1930) was an English writer, novelist, poet and essayist. His works reflect on modernity, industrialization, sexuality, emotional health, vitality, spontaneity and instinct. His best-k ...
, 1928) were banned for obscenity. In the federal district court
The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
case '' United States v. One Book Called Ulysses'' (1933), Judge John M. Woolsey established a new standard to evaluate James Joyce
James Augustine Aloysius Joyce (2 February 1882 – 13 January 1941) was an Irish novelist, poet, and literary critic. He contributed to the modernist avant-garde movement and is regarded as one of the most influential and important writers of ...
's novel ''Ulysses
Ulysses is one form of the Roman name for Odysseus, a hero in ancient Greek literature.
Ulysses may also refer to:
People
* Ulysses (given name), including a list of people with this name
Places in the United States
* Ulysses, Kansas
* Ulysse ...
'' (1922), stating that works must be considered in their entirety, rather than declared obscene on the basis of an individual part of the work.
The Supreme Court ruled in ''Roth v. United States
''Roth v. United States'', 354 U.S. 476 (1957), along with its companion case ''Alberts v. California'', was a landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes o ...
'' (1957) that the First Amendment did not protect obscenity. It also ruled that the ''Hicklin'' test was inappropriate; instead, the ''Roth'' test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest". This definition proved hard to apply, however, and in the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene. Justice Potter Stewart
Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas, ...
, in '' Jacobellis v. Ohio'' (1964), famously said that, although he could not precisely define pornography, "I know it when I see it
The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was used in 1964 by United St ...
".
The ''Roth'' test was expanded when the Court decided ''Miller v. California
''Miller v. California'', 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, politi ...
'' (1973). Under the ''Miller'' test, a work is obscene if:
"Community" standards—not national standards—are applied to determine whether allegedly obscene material appeals to the prurient interest and is patently offensive. By contrast, the question whether a work lacks serious value depends upon "whether a reasonable person would find such value in the material, taken as a whole."
Child pornography
Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
is not subject to the ''Miller'' test, as the Supreme Court decided in ''New York v. Ferber
''New York v. Ferber'', 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting childr ...
'' (1982) and ''Osborne v. Ohio
''Osborne v. Ohio'', 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the Court held that the First Amendment to the United States Constitution allows states to outlaw the possession, as distinct from the distribution, of child pornograph ...
'' (1990), ruling that the government's interest in protecting children from abuse was paramount.
Personal possession of obscene material in the home may not be prohibited by law. In '' Stanley v. Georgia'' (1969), the Court ruled that " the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." However, it is constitutionally permissible for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. ''Ashcroft v. Free Speech Coalition
''Ashcroft v. Free Speech Coalition'', 535 U.S. 234 (2002), is a U.S. Supreme Court case which struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amou ...
'' (2002) further upheld these rights by invalidating the Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 (CPPA) was a United States federal law to restrict child pornography on the internet, including virtual child pornography.
Before 1996, Congress defined child pornography with reference to the ''Ferber' ...
, holding that, because the act " ohibit dchild pornography that does not depict an actual child" (simulated child pornography
Simulated child pornography is child pornography depicting what appear to be minors but which is produced without the direct involvement of children.
Types
Types of simulated child pornography include: modified photographs of real children, non- ...
) it was overly broad and unconstitutional under the First Amendment and:
In '' United States v. Williams'' (2008), the Court upheld the PROTECT Act of 2003
The PROTECT Act of 2003 (, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a contrived ...
, ruling that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.
Memoirs of convicted criminals
In some states, there are Son of Sam law
A Son of Sam law (also known as a notoriety-for-profit law) is an American English term for any law designed to keep criminals from profiting from the publicity of their crimes, for instance by selling their stories to publishers. Such laws often ...
s prohibiting convicted criminals from publishing memoirs for profit. These laws were a response to offers to David Berkowitz
David Richard Berkowitz (born Richard David Falco, June 1, 1953), also known as the Son of Sam and .44 Caliber Killer, is an American serial killer who pleaded guilty to eight shootings that began in New York City on July 29, 1976.
Berkowitz ...
to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case '' Simon & Schuster v. Crime Victims Board'' (1991). That statute did not prohibit publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a time. The interest from the escrow
An escrow is a contractual arrangement in which a third party (the stakeholder or escrow agent) receives and disburses money or property for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transacti ...
account was used to fund the New York State Crime Victims Board—an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.
Defamation
American tort liability for defamatory
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
speech or publications traces its origins to English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
and Edward Coke
Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”.
History
The name Edward was very popular in Anglo-Sa ...
. An action of slander required the following:
# Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
# That the charge must be false;
# That the charge must be articulated to a third person, verbally or in writing;
# That the words are not subject to legal protection, such as those uttered in Congress; and
# That the charge must be motivated by malice.
An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements. For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and true statements could damage this support even more than false ones. Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule".
Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
's argument that the punishment of "dangerous or offensive writings... asnecessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty" and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written. Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.
The Supreme Court's ruling in ''New York Times Co. v. Sullivan'' (1964) fundamentally changed American defamation law. The case redefined the type of "malice" needed to sustain a libel case. Common law malice consisted of "ill-will" or "wickedness". Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by "clear and convincing evidence" that there was actual malice
Actual malice in United States law is a legal requirement imposed upon public officials or public figures when they file suit for libel (defamatory printed communications). Compared to other individuals who are less well known to the general publi ...
. The case involved an advertisement published in ''The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' indicating that officials in Montgomery, Alabama
Montgomery is the capital city of the U.S. state of Alabama and the county seat of Montgomery County. Named for the Irish soldier Richard Montgomery, it stands beside the Alabama River, on the coastal Plain of the Gulf of Mexico. In the 202 ...
had acted violently in suppressing the protests of African-Americans during the civil rights movement
The civil rights movement was a nonviolent social and political movement and campaign from 1954 to 1968 in the United States to abolish legalized institutional Racial segregation in the United States, racial segregation, Racial discrimination ...
. The Montgomery Police Commissioner, L. B. Sullivan, sued the ''Times'' for libel, saying the advertisement damaged his reputation. The Supreme Court unanimously reversed the $500,000 judgment against the ''Times''. Justice Brennan suggested that public officials may sue for libel only if the statements in question were published with "actual malice"—"knowledge that it was false or with reckless disregard of whether it was false or not". In sum, the court held that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)."
While actual malice standard applies to public officials and public figures, in '' Philadelphia Newspapers v. Hepps'' (1988), the Court found that, with regard to private individuals, the First Amendment does "not necessarily force any change in at least some features of the common-law landscape". In '' Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.'' (1985) the Court ruled that "actual malice" need not be shown in cases involving private individuals, holding that " light of the reduced constitutional value of speech involving no matters of public concern... the state interest adequately supports awards of presumed and punitive damages—even absent a showing of 'actual malice'." In ''Gertz v. Robert Welch, Inc.
''Gertz v. Robert Welch, Inc.'', 418 U.S. 323 (1974), was a landmark decision of the US Supreme Court establishing the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long ...
'' (1974), the Court ruled that a private individual had to prove malice only to be awarded punitive damages, not actual damages. In ''Hustler Magazine v. Falwell
''Hustler Magazine, Inc. v. Falwell'', 485 U.S. 46 (1988), was a landmark decision of the United States Supreme Court ruling that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional inf ...
'' (1988), the Court extended the "actual malice" standard to intentional infliction of emotional distress
Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted ...
in a ruling which protected parody, in this case a fake advertisement in ''Hustler
Hustler or hustlers may also refer to:
Professions
* Hustler, an American slang word, e.g., for a:
** Con man, a practitioner of confidence tricks
** Drug dealer, seller of illegal drugs
** Male prostitute
** Pimp
** Business man, more gener ...
'' suggesting that evangelist Jerry Falwell
Jerry Laymon Falwell Sr. (August 11, 1933 – May 15, 2007) was an American Baptist pastor, televangelism, televangelist, and conservatism in the United States, conservative activist. He was the founding pastor of the Thomas Road Baptist Church, ...
's first sexual experience had been with his mother in an outhouse. Since Falwell was a public figure, the Court ruled that "importance of the free flow of ideas and opinions on matters of public interest and concern" was the paramount concern, and reversed the judgement Falwell had won against ''Hustler'' for emotional distress.
In '' Milkovich v. Lorain Journal Co.'' (1990), the Court ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled "opinion", but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit. Nonetheless, it has been argued that ''Milkovich'' and other cases effectively provide for an opinion privilege Opinion privilege is a protected form of speech, of importance to US federal and state law. The US First Amendment guarantees free speech, subject to certain limitations. One of these limitations is defamation, in various forms, notably libel. W ...
.
Private action
Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment prohibits only the federal government, the states and local governments from doing so.
State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in ''Pruneyard Shopping Center v. Robins
''Pruneyard Shopping Center v. Robins'', 447 U.S. 74 (1980), was a U.S. Supreme Court decision issued on June 9, 1980 which affirmed the decision of the California Supreme Court in a case that arose out of a free speech dispute between the Pruneya ...
''. In that case, the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude such individuals. However, the Court did maintain that shopping centers could impose "reasonable restrictions on expressive activity". Subsequently, New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
, Colorado
Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of t ...
, Massachusetts and Puerto Rico courts have adopted the doctrine; California's courts have repeatedly reaffirmed it.
Freedom of the press
The free speech and free press clauses have been interpreted as providing the same protection to speakers as to writers, except for radio and television wireless broadcasting which have, for historical reasons, been given less constitutional protections. The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government. This right was described in ''Branzburg v. Hayes
''Branzburg v. Hayes'', 408 U.S. 665 (1972), was a landmark decision of the US Supreme Court invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972, and ...
'' as "a fundamental personal right" that is not confined to newspapers and periodicals, but also embraces pamphlets and leaflets. In ''Lovell v. City of Griffin
''Lovell v. City of Griffin'', 303 U.S. 444 (1938), is a United States Supreme Court case. This case was remarkable in its discussion of the requirement of persons to seek government sanction to distribute religious material. In this particular ca ...
'' (1938), Chief Justice Charles Evans Hughes
Charles Evans Hughes Sr. (April 11, 1862 – August 27, 1948) was an American statesman, politician and jurist who served as the 11th Chief Justice of the United States from 1930 to 1941. A member of the Republican Party, he previously was the ...
defined "press" as "every sort of publication which affords a vehicle of information and opinion". This right has been extended to media including newspapers, books, plays, movies, and video games. While it is an open question whether people who blog or use social media are journalists entitled to protection by media shield laws, they are protected equally by the Free Speech Clause and the Free Press Clause, because both clauses do not distinguish between media businesses and nonprofessional speakers. This is further shown by the Supreme Court consistently refusing to recognize the First Amendment as providing greater protection to the institutional media than to other speakers. For example, in a case involving campaign finance laws the Court rejected the "suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by" non-institutional-press businesses. Justice Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicia ...
stated in a concurring opinion in another case succinctly: " e purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it." In ''Mills v. Alabama'' (1943) the Supreme Court laid out the purpose of the free press clause:
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This, of course, includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see '' Lovell v. Griffin'', 303 U. S. 444, to play an important role in the discussion of public affairs. Thus, the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials, and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
thoughtfully and deliberately selected to improve our society and keep it free.
A landmark decision for press freedom came in ''Near v. Minnesota
''Near v. Minnesota'', 283 U.S. 697 (1931), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court under which prior restraint on publication was found to violate Freedom of the press in the United S ...
'' (1931), in which the Supreme Court rejected prior restraint
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship ...
(pre-publication censorship). In this case, the Minnesota legislature passed a statute allowing courts to shut down "malicious, scandalous and defamatory newspapers", allowing a defense of truth only in cases where the truth had been told "with good motives and for justifiable ends". The Court applied the Free Press Clause to the states, rejecting the statute as unconstitutional. Hughes quoted Madison in the majority decision, writing, "The impairment of the fundamental security of life and property by criminal alliances and official neglect emphasizes the primary need of a vigilant and courageous press."
However, ''Near'' also noted an exception, allowing prior restraint in cases such as "publication of sailing dates of transports or the number or location of troops". This exception was a key point in another landmark case four decades later: ''New York Times Co. v. United States
''New York Times Co. v. United States'', 403 U.S. 713 (1971), was a landmark decision of the Supreme Court of the United States on the First Amendment right of Freedom of the Press. The ruling made it possible for ''The New York Times'' and ''The ...
'' (1971), in which the administration of President Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
sought to ban the publication of the ''Pentagon Papers
The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States in the Vietnam War, United States' political and military ...
'', classified government documents about the Vietnam War secretly copied by analyst Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the ''Pent ...
. The Court found that the Nixon administration had not met the heavy burden of proof required for prior restraint. Justice Brennan, drawing on ''Near'' in a concurrent opinion, wrote that "only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an evil kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order." Justices Black and Douglas went still further, writing that prior restraints were never justified.
The courts have rarely treated content-based regulation of journalism with any sympathy. In ''Miami Herald Publishing Co. v. Tornillo
''Miami Herald Publishing Co. v. Tornillo'', 418 U.S. 241 (1974), was a seminal First Amendment ruling at the United States Supreme Court. The Supreme Court overturned a Florida state law that required newspapers to offer equal space to political ...
'' (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish.
Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. In '' Federal Communications Commission v. Pacifica Foundation'', the Supreme Court upheld the Federal Communications Commission
The Federal Communications Commission (FCC) is an independent agency of the United States federal government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdiction ...
's authority to restrict the use of "indecent
Inappropriateness refers to standards or ethics that are typically viewed as being negative in a society. It differs from things that are illicit in that inappropriate behavior does not necessarily have any accompanying legal ramifications.
Co ...
" material in broadcasting.
State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In '' Grosjean v. American Press Co.'' (1936), the Court invalidated a state tax on newspaper advertising revenues, holding that the role of the press in creating "informed public opinion" was vital. Similarly, some taxes that give preferential treatment to the press have been struck down. In ''Arkansas Writers' Project v. Ragland'' (1987), for instance, the Court invalidated an Arkansas
Arkansas ( ) is a landlocked state in the South Central United States. It is bordered by Missouri to the north, Tennessee and Mississippi to the east, Louisiana to the south, and Texas and Oklahoma to the west. Its name is from the Osage ...
law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content. In ''Leathers v. Medlock'' (1991), the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."
In ''Branzburg v. Hayes
''Branzburg v. Hayes'', 408 U.S. 665 (1972), was a landmark decision of the US Supreme Court invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972, and ...
'' (1972), the Court ruled that the First Amendment did not give a journalist the right to refuse a subpoena
A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
from a grand jury
A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
. The issue decided in the case was whether a journalist could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the belief that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment". The decision was that such a protection was not provided by the First Amendment. However, a concurring opinion by Justice Lewis F. Powell
Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1972 to 1987.
Born in Suffolk, Virginia, he gradua ...
, in which he said a claim for press privilege "should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions," has been frequently cited by lower courts since the decision.
Petition and assembly
The Petition Clause protects the right "to petition the government for a redress of grievances". The right expanded over the years: "It is no longer confined to demands for 'a redress of grievances', in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters." The right to petition the government for a redress of grievances therefore includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis. The Petition Clause first came to prominence in the 1830s, when Congress established the gag rule
A gag rule is a rule that limits or forbids the raising, consideration, or discussion of a particular topic, often but not always by members of a legislative or decision-making body. A famous example of gag rules is the series of rules concernin ...
barring anti-slavery petitions from being heard; the rule was overturned by Congress several years later. Petitions against the Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
resulted in imprisonments. The Supreme Court did not rule on either issue.
In ''California Motor Transport Co. v. Trucking Unlimited
''California Motor Transport Co. v. Trucking Unlimited'', 404 U.S. 508 (1972), was a landmark decision of the US Supreme Court involving the right to make petitions to the government. The right to petition is enshrined in the First Amendment to t ...
'' (1972), the Supreme Court said the right to petition encompasses "the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition." Today, thus, this right encompasses petitions to all three branches of the federal government—the Congress, the executive and the judiciary—and has been extended to the states through incorporation. According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. The right protects not only demands for "a redress of grievances" but also demands for government action. The petition clause includes according to the Supreme Court the opportunity to institute non-frivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.
In ''Borough of Duryea v. Guarnieri
''Borough of Duryea v. Guarnieri'', 564 U.S. 379 (2011), was a case in which the Supreme Court of the United States held the public concern test limits Petition Clause claims by public employees. More specifically, state and local government emplo ...
'' (2011),[. ] the Supreme Court stated regarding the Free Speech Clause and the Petition Clause:
The right of assembly is the individual right
Group rights, also known as collective rights, are rights held by a group '' qua'' a group rather than individually by its members; in contrast, individual rights are rights held by individual people; even if they are group-differentiated, which ...
of people to come together and collectively express, promote, pursue, and defend their collective or shared ideas. This right is equally important as those of free speech and free press, because, as observed by the Supreme Court of the United States in ''De Jonge v. Oregon
''De Jonge v. Oregon'', 299 U.S. 353 (1937), was a case in which the Supreme Court of the United States held that the Fourteenth Amendment to the United States Constitution, Fourteenth Amendment's due process clause applies freedom of assembly Inco ...
'', 299 U.S. 353, 364, 365 (1937), the right of peaceable assembly is "cognate to those of free speech and free press and is equally fundamental... tis one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions—principles which the Fourteenth Amendment embodies in the general terms of its due process clause... The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question... is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." The right of peaceable assembly was originally distinguished from the right to petition. In '' United States v. Cruikshank'' (1875), the first case in which the right to assembly was before the Supreme Court, the court broadly declared the outlines of the right of assembly and its connection to the right of petition:
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.
Justice Morrison Waite
Morrison Remick "Mott" Waite (November 29, 1816 – March 23, 1888) was an American attorney, jurist, and politician from Ohio. He served as the seventh chief justice of the United States from 1874 until his death in 1888. During his tenur ...
's opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions. An example for this is ''Hague v. Committee for Industrial Organization
''Hague v. Committee for Industrial Organization'', 307 U.S. 496 (1939), is a US labor law case decided by the Supreme Court of the United States, United States Supreme Court.
Facts
In Jersey City, New Jersey, Jersey City, New Jersey, Mayor Frank ...
'' (1939), where it was decided that the freedom of assembly covered by the First Amendment applies to public forums like streets and parks. In two 1960s decisions collectively known as forming the Noerr-Pennington doctrine, the Court established that the right to petition prohibited the application of antitrust law
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...
to statements made by private entities before public bodies: a monopolist may freely go before the city council and encourage the denial of its competitor's building permit without being subject to Sherman Act
The Sherman Antitrust Act of 1890 (, ) is a United States antitrust law which prescribes the rule of free competition among those engaged in commerce. It was passed by Congress and is named for Senator John Sherman, its principal author.
Th ...
liability.
Freedom of association
Although the First Amendment does not explicitly mention freedom of association, the Supreme Court ruled, in ''NAACP v. Alabama
''National Association for the Advancement of Colored People v. Alabama'', 357 U.S. 449 (1958), was a landmark decision of the US Supreme Court. Alabama sought to prevent the NAACP from conducting further business in the state. After the circuit ...
'' (1958), that this freedom was protected by the amendment and that privacy of membership was an essential part of this freedom. In ''Roberts v. United States Jaycees
''Roberts v. United States Jaycees'', 468 U.S. 609 (1984), was a decision of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law. The ca ...
'' (1984), the Court stated that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends". In ''Roberts'' the Court held that associations may not exclude people for reasons unrelated to the group's expression, such as gender.
However, in '''' (1995), the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, in ''Boy Scouts of America v. Dale
''Boy Scouts of America et al. v. Dale'', 530 U.S. 640 (2000), was a landmark decision of the US Supreme Court, decided on June 28, 2000, that held that the constitutional right to freedom of association allowed the Boy Scouts of America (BSA) to ...
'' (2000), the Court ruled that a New Jersey law, which forced the Boy Scouts of America
The Boy Scouts of America (BSA, colloquially the Boy Scouts) is one of the largest scouting organizations and one of the largest youth organizations in the United States, with about 1.2 million youth participants. The BSA was founded i ...
to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.
In ''Americans for Prosperity Foundation v. Bonta
''Americans for Prosperity Foundation v. Bonta'', 594 U.S. ___ (2021), is a United States Supreme Court case dealing with the disclosure of donors to non-profit organizations. The case challenged California's requirement that requires non-profit o ...
'' (2021), the Court ruled that California's requiring disclosure of the identities of nonprofit companies' big-money donors did not serve a narrowly tailored government interest and, thus, violated those donors' First Amendment rights.
See also
* Censorship in the United States
Censorship in the United States involves the suppression of speech or public communication and raises issues of freedom of speech, which is protected by the First Amendment to the United States Constitution. Interpretation of this fundamental ...
* First Amendment audits
* Free speech zone
Free speech zones (also known as First Amendment zones, free speech cages, and protest zones) are areas set aside in public places for the purpose of political protesting. The First Amendment to the United States Constitution states that "Congres ...
* Freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
* Government speech The government speech doctrine, in American constitutional law, says that the government is not infringing the free speech rights of individual people when the government declines to use viewpoint neutrality in its own speech.Hudson, David. The Re ...
* List of amendments to the United States Constitution
Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having bee ...
*
* Marketplace of ideas
The marketplace of ideas is a rationale for freedom of expression based on an analogy to the Economics, economic concept of a free market. The marketplace of ideas holds that the truth will emerge from the competition of ideas in free, transparent ...
* Military expression
Military expression is an area of military law pertaining to the United States military that relates to the free speech rights of its service members. While "military free speech" was the term used during the Vietnam War era, "military expression ...
* Photography Is Not a Crime
Photography Is Not a Crime (PINAC, published under the trade name PINAC News), is an organization and news website that focuses on rights of civilians who photograph and film police and other government organizations in the United States. It w ...
* United States Postal Service
The United States Postal Service (USPS), also known as the Post Office, U.S. Mail, or Postal Service, is an independent agency of the executive branch of the United States federal government responsible for providing postal service in the U ...
* United States free speech exceptions
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
...
* Williamsburg Charter
* Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
Explanatory notes
References
Citations
General and cited references
*
*
*
*
*
*
Further reading
*
* Daniel L. Dreisbach and Mark David Hall
Mark David Hall (born 22 February 1966) is Herbert Hoover Distinguished Professor of Politics and Faculty Fellow in the Honors Program at George Fox University. He is the author of a number of books on religion and politics in American life. The m ...
. ''The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding''. Indianapolis, IN: Liberty Fund Press, 2009.
* Daniel L. Dreisbach, Mark David Hall, and Jeffry Morrison. ''The Forgotten Founders on Religion and Public Life'' Notre Dame, IN: University of Notre Dame Press, 2009.
* Thomas I. Emerson
Thomas I. Emerson (1907–1991) was a 20th-century American attorney and professor of law. He is known as a "major architect of civil liberties law,"
"arguably the foremost First Amendment scholar of his generation,"
and "pillar of the Bill of R ...
, "Toward a General Theory of the First Amendment", ''Yale Law Journal'', vol. 72, no. 5 (1963), pp. 877–956. . .
*
* Peter Irons, ''A People's History of the Supreme Court''. New York: Penguin, 1999.
*
* Kabala, James S., ''Church-State Relations in the Early American Republic, 1787–1846''. London: Pickering and Chatto, 2013.
* Johnny Killian and George Costello (eds.) (2000). ''The Constitution of the United States of America: Analysis and Interpretation'',
Current version
* Nicholas P. Miller, ''The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State''. New York: Oxford University Press, 2012.
*
External links
*
*
*
* – Updated May 24, 2005
{{DEFAULTSORT:First Amendment To The United States Constitution
1791 in American politics
1791 in American law
01
Christianity and law in the 18th century
Freedom of religion in the United States
Separation of church and state in the United States
Edicts of toleration