The First Amendment to the U.S. Constitution is arguably one of the most important laws in America. It prohibits the enactment of any laws respecting the establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing upon the freedom of the press, interfering with the right to peaceably assemble, or prohibiting citizens from petitioning for a governmental redress of grievances. It was adopted into the U.S. Constitution as a part of the first ten amendments, known as the “Bill of Rights” in 1791.
Freedom of Speech / Freedom of the Press
Today the First Amendment is almost synonymous in the minds of Americans with the freedom of speech and free press. The right to speak and write freely on virtually any topic is a right that has been fiercely protected by both the U.S. Supreme Court and the citizens as a whole. As a general rule, a person can say or write virtually anything about any person or topic, so long as it is truthful or based on an honest opinion, and cannot be held liable, either criminally or civilly for such statements.
Certain types of speech are more readily protected than others. For example, commercial speech is heavily regulated because of the public interest in preventing false or misleading advertising, but political speech, or statements critical of the government, is one of the most strongly protected because of the interest in allowing differing, possibly unpopular opinions to be voiced. Artistic expression is also frequently protected under the First Amendment as a form of free speech or free press, which has led to a broad body of case law on topics such as obscenity and public indecency.
One area in which free speech is restricted is in the situation of defamatory speech. While one has an almost unfettered right to say or publish anything which is truthful or based on an honest opinion, one cannot spread false statements about another person or entity. Doing so may constitute some form of defamation (slander if spoken, libel if printed). Just as certain forms of speech are more protected by the type of speech they relate to, so too are certain types of statements more prone to being construed as defamatory. For example, a negative opinion expressed about a competitor's product or service is less likely to be considered free speech and more likely to be viewed as defamatory than an equally negative opinion about a politician's foreign policy.
Freedom of Religion
Freedom of religion prevents the government from either establishing a state religion or prohibiting anyone from practicing any particular religion. This is also a heavily protected right in the American system of government and jurisprudence, although it frequently comes under political attack as the winds of public opinion shift. Fortunately, as a constitutional amendment, this fundamental right is not easily altered, meaning that faiths which were once viewed unfavorably (such as Catholicism during the time of Irish and Italian immigration surges) have been able to survive and flourish. A recent example was the backlash against Islam in a post-9/11 America, where many sought to bar the practice of the faith or construction of masques in certain areas. Fortunately, these efforts were thwarted by the First Amendment, and Muslims remain free to exercise their faith in the United States.
Right to Assemble / Right to Petition
The right to assemble allows for groups to gather peacefully. This may seem an exceedingly simple right at first blush, but is used to protect things like demonstration rallies and meetings to discuss whatever topic a group wishes. For example, this right came under fire during the civil rights movement and communist scares of the mid-20th century, when government powers wished to prevent protests or meetings of groups interested in discussing what was considered, at the time, a dangerous and hostile political philosophy. Ultimately, these rights were protected and the world changed.
Similarly, the right to petition prevents the government from setting its own agenda and ignoring the public will. During the pre-civil war era, Congress attempted to pass a rule prohibiting the discussion of emancipation. This rule was later overturned by Congress.
The First Amendment to the U.S. Constitution is one of the most important sources of law in the United States. For more information on this area of the law, please review the materials found below. If you have a specific issue or question requiring the assistance of a legal professional, please visit our Law Firms page for a list of attorneys in your area who can be of assistance.
First Amendment Law - US
- Bill of Rights
During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.
- Establishment Clause
Two clauses of the First Amendment concern the relationship of government to religion: the Establishment Clause and the Free Exercise Clause. Although the clauses were intended by the framers to serve common values, there is some tension between the two. For example, some people might suggest that providing a military chaplain for troops stationed overseas violates the Establishment Clause, while others might suggest that failing to provide a chaplain violates the Free Exercise Clause rights of the same troops. We will, however, postpone discussion of how the two clauses ought to be reconciled, and begin with an examination of the meaning of the Establishment Clause.
- Free Exercise of Religion
Supreme Court interpretation of the Free Exercise Clause has come full circle. From its narrow reading of the clause in 1878 in Reynolds, to its much broader reading of the clause in the Warren and Burger Court years, the Court returned to its narrow interpretation in the controversial 1990 case of Employment Division of Oregon v Smith. The story of this circular migration is an interesting one, and may provide lessons for other areas of constitutional interpretation.
- Freedom of Speech
Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not. The First Amendment states, in relevant part, that: “Congress shall make no law...abridging freedom of speech.”
- The First Amendment
Madison’s original proposal for a bill of rights provision concerning religion read: “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 pretence, infringed.”1 The language was altered in the House to read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
- The First Amendment - Definition
The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. The Establishment Clause of the First Amendment has been interpreted by the Supreme Court as erecting a separation of church and state.
Organizations Related to the First Amendment Law
- American Civil Liberties Union
The ACLU is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.
- Center for Democracy and Technology
The Center for Democracy and Technology is a non-profit public interest organization working to keep the Internet open, innovative, and free. As a civil liberties group with expertise in law, technology, and policy, CDT works to enhance free expression and privacy in communications technologies by finding practical and innovative solutions to public policy challenges while protecting civil liberties. CDT is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.
- Commission on International Religious Freedom (USCIRF)
USCIRF is an independent, bipartisan U.S. federal government commission. USCIRF Commissioners are appointed by the President and the leadership of both political parties in the Senate and the House of Representatives. USCIRF's principal responsibilities are to review the facts and circumstances of violations of religious freedom internationally and to make policy recommendations to the President, the Secretary of State and Congress.
- First Amendment Center
Welcome to the First Amendment Center’s Web site, featuring comprehensive research coverage of key First Amendment issues and topics, daily First Amendment news, commentary and analyses by respected legal specialists, and a First Amendment Library of legal cases and related materials.
- Freedom Forum
The Freedom Forum is the main funder of the operations of the Newseum in Washington, D.C., the First Amendment Center and the Diversity Institute. The First Amendment Center and the Diversity Institute are housed in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn. The First Amendment Center also has offices in Washington and the Diversity Institute has offices and programs at the University of South Dakota in Vermillion.
- National Coalition Against Censorship
The National Coalition Against Censorship, an alliance of fifty-two participating organizations, is dedicated to protecting free expression and access to information by: * Providing educational resources and advocacy support to individuals and organizations responding to incidents of censorship * Educating and empowering the public to fight censorship * Documenting and reporting on current censorship issues * Expanding public awareness of the prevalence of censorship and suppression of information * Working to influence judicial opinions about free expression and access to information by submitting amici briefs.
- People For the American Way
People For the American Way is dedicated to making the promise of America real for every American: Equality. Freedom of speech. Freedom of religion. The right to seek justice in a court of law. The right to cast a vote that counts. The American Way.
- Reporters Committee for Freedom of the Press
The Reporters Committee for Freedom of the Press was created in 1970 at a time when the nation's news media faced a wave of government subpoenas asking reporters to name confidential sources.
- Thomas Jefferson Center for the Protection of Free Expression
The Thomas Jefferson Center for the Protection of Free Expression is a unique organization, devoted solely to the defense of free expression in all its forms. While its charge is sharply focused, the Center’s mission is broad. It is as concerned with the musician as with the mass media, with the painter as with the publisher, and as much with the sculptor as the editor.
- USDOJ - Civil Rights Division
The Civil Rights Division is committed to upholding the civil and constitutional rights of all individuals, particularly some of the most vulnerable members of our society. The Division enforces federal statutes designed to protect the civil rights of all individuals and prohibit discrimination on the basis of race, color, sex, disability, religion, and national origin. Established in 1957, the Division has grown in size and scope over the decades, and has been instrumental in many of our nation’s battles to advance civil rights, from the desegregation of our nation’s schools to the prosecution of hate crimes, from ensuring girls and women have equal opportunities in schools and the workplace to guaranteeing that individuals with disabilities can access civil services to which we all have a right.
Publications Related to the First Amendment Law
- ABA Journal - First Amendment
ABAJournal.com is the website of the flagship magazine of the American Bar Association. The site features: * Breaking legal news, updated as it happens by our staff of reporters throughout every business day. * Analysis from more than 3,000 legal blogs, written by lawyers who are experts in their fields. * Stories that go beyond the headlines, from the pages of the nation’s most-read and most-respected legal affairs magazine.
- First Amendment Law Review (FALR)
The is a student-edited legal journal that seeks to promote and protect the rights and freedoms guaranteed by the First Amendment through publishing scholarly writings on, and promoting discussion of, issues related to the First Amendment to the Constitution of the United States.
Articles on HG.org Related to the First Amendment Law
- Data Privacy Cases Pending in Front of U.S. Supreme CourtThe United States Supreme Court will decide whether American courts can issue warrants for data stored on servers overseas.
- Discrimination by Commercial Landlord Based on Disclosed Religious Use of PropertyReligious discrimination may exist when a person seeking a commercial lease or hoping to buy a commercial site is denied the ability to complete this transaction solely because of his or her religion. There are often different rules for commercial properties than there are for residential properties, but legal protections may exist to prohibit such conduct.
- Reliable and Accurate Forensic Testing at Risk under Attorney General SessionsSeveral of my law firm colleagues and I, as well as others in the criminal defense bar in Wisconsin, regularly deal with DNA and other trace forensic evidence. The need for accurate and reliable forensic testing by law enforcement and state crime labs is critical, as our criminal clients’ lives and freedom is at stake.
- Challenging a Warrantless Search by Police in a Constitutionally Protected SpaceWarrantless searches by police of a place that is protected by the Fourth Amendment are presumptively unreasonable.
- Using a Journalism Expert Witness in Civil CasesJournalism expert witnesses are hired when there are certain complications with the freedom of speech or when more information is needed in a case. These professionals have experience in investigations, due diligence with reporters and geographical systems which may be applied to a claim.
- When Making a Movie Is Not Considered an Exercise of Free SpeechMovies are a form of intellectual property because they embody the ideas of someone or a group of persons in video format. However, making movies is usually an exercise in free speech, but there are some issues with the creator being paid, various changes to the concept and when the altered final product is completely different, it may not be considered an act of free speech.
- Texas Voter ID Law Revived by Appeals CourtThe attempt by the Texas Legislature to enact a voter ID law has been tangled in the courts ever since the effort began.
- Concealed Carry Permit Holders and Public Transportation in WisconsinMilwaukee’s newest form of public transportation, the downtown street car, aims to connect commuters to Milwaukee’s thriving business district. The street car will bring more flexibility and choice to Milwaukee’s public transportation.
- Textalyzer to Help Combat Texting While Driving. But Is It Constitutional?The dangers associated with texting and driving have prompted some states to take direct action to combat the issue. With the aid of Cellebrite, a technology company, police departments may soon be able to use a handheld device to determine whether a person has been using his or her cell phone while driving a car.
- Judge Rejects Texas Voting Law ChangesA federal court judge has shot down changes to Texas voting laws for the second time. This same judge who first ruled against the law in 2014, found that the changes made earlier in the year are insufficient and carry “chilling” consequences.
- All Civil Rights Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Civil Rights including: constitutional law, consumer law, discrimination, human rights, native populations, privacy law, public law and sexual harassment.