FIRST AMENDMENT
The First Amendment to the U.S. Constitution
reads:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the free-
dom of speech, or of the press; or the right of
the people peaceably to assemble, and to peti-
tion the Government for a redress of griev-
ances.
At first glance, the First Amendment appears
to be written in clear, unequivocal, and facile
terms: “Congress shall make no law” (emphasis
added) in contravention of certain religious and
political principles. After a closer reading, and
upon further reflection, the amendment’s
underlying complexities rise to the surface in the
form of persistent questions that have nagged
the legal system over the last two centuries.
What kind of law “respect[s] the establish-
ment of religion”? Does the First Amendment
include here only laws that would establish an
official national religion, as the Anglican Church
was established in England prior to the Ameri-
412 FIRE
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Editioncan Revolution? Or does it also include laws that
recognize or endorse religious activities such as
the celebration of Christmas? More importantly,
can people agree on what is meant by the word
religion so that judges may know when religion
is being “established” or when the right to its
“free exercise” has been infringed?
In the area of free speech, does the right to
speak your mind include the right to use offensive
language that could start a fight or incite a riot? Is
FREEDOM OF SPEECH synonymous with freedom
of expression, such that the right to condemn the
U.S. government extends to offensive symbolic
actions involving no written or spoken words,
like burning the U.S. flag? Does FREEDOM OF THE
PRESS protect the right to publish scurrilous,
defamatory, and libelous material? If not, can the
government prohibit the publication of such
material before it goes to print?
The U.S. Supreme Court has confronted
most of these questions. Its answers have not
always produced unanimous, or even wide-
spread, agreement around the United States. But
the Court’s decisions have provided a prism
through which U.S. citizens have examined the
appropriate limitations society may place on the
freedoms protected by the First Amendment,
and have sparked colorful and spirited discus-
sions among friends and family members, as
well as politicians and their constituents.
Freedom of Speech
The Founding Fathers were intimately
familiar with government suppression of politi-
cal speech. Prior to the American Revolution,
the Crown imprisoned, pilloried, mutilated,
exiled, and even killed men and women who
belonged to minority political parties in Eng-
land, in order to extinguish dissenting views.
Many of these dissenters left England in search
of more freedom in the New World, where they
instead found colonial governments that stifled
political dissidence with similar fervor. Mary-
land, for example, passed a law prohibiting “all
speeches, practices and attempts relating to [the
British Crown], that shall be thought mutinous
and seditious,” and provided punishments that
included whipping, branding, fines, imprison-
ment, BANISHMENT, and death. The Free Speech
Clause of the Constitution was drafted to pro-
tect such political dissenters from a similar fate
in the newly founded United States.
In light of this background, the U.S.
Supreme Court has afforded dissident political
speech unparalleled constitutional protection.
However, all speech is not equal under the First
Amendment. The high court has identified five
areas of expression that the government may
legitimately restrict under certain circum-
stances. These areas are speech that incites illegal
activity and subversive speech, fighting words,
OBSCENITY and PORNOGRAPHY, commercial
speech, and symbolic expression.
The Court has also made clear that states
cannot restrict the free speech rights of candi-
dates for judicial office. Unlike federal judges,
most state judges must stand for election. in
their codes of judicial conduct, states have
imposed restrictions on what candidates or sit-
ting judges may say about issues, in hopes of
preserving judicial independence and assuring
the public that the justice system is impartial.
