According to the first amendment to the American Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[i]”
The first ten amendments to the American Constitution comprise the Bill of Rights.[ii] The first amendment protects religious freedom by prohibiting the establishment of an official or exclusive church or sect. Free speech and free press are protected, although they can be limited for reasons of defamation, obscenity, and certain forms of state censorship, especially during wartime. The freedom of assembly and petition also covers marching, picketing and pamphleteering.
A general feeling of lack of adequate guarantees for civil liberties resulted in opposition to the ratification of the Constitution. In order to overcome this feeling as well as to provide guarantees of civil liberties, the First Amendment to the Constitution was adopted on December 15, 1791.
The establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion is expressly prohibited by the Establishment Clause of the First Amendment. Even though the First Amendment originally applied only to the federal government, later, under the incorporation doctrine, certain selected provisions were applied to states. By the twentieth century however, the Supreme Court began to interpret the Establishment and Free Exercise Clauses as restricting the promotion of religion by state governments.
The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, under the incorporation doctrine, certain selected provisions were applied to states. It was not, however, until the middle and later years of the twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by state governments. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet[iii], Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion”.
In Sherbert v. Verner[iv], the Court applied the strict scrutiny standard of review to Establishment and Free Exercise Clauses, holding that a state must show a compelling interest in restricting religion-related activities. However, in a marked departure from this standard in Employment Division v. Smith[v], the Supreme Court permitted governmental actions that were neutral regarding religion. The Congress attempted to restore this standard by passing the Religious Freedom Restoration Act, but in City of Boerne v. Flores [vi], the Supreme Court refused to sustain the constitutionality of the Religious Freedom Restoration Act of 1993 because it contradicted vital principles necessary to maintain separation of powers and the federal balance.
The right to freedom of the press guaranteed by the first amendment is similar to the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression.
In Schenck v. United States[vii], the defendant argued on the basis that the Espionage Act violated their First Amendment rights to the freedom of speech and the freedom of the press. The case involved Charles Schenck, who had, during the war, published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck’s conviction for violating the Espionage Act. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested 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 that they will bring about the substantive evils that Congress has a right to prevent.” The Supreme Court therefore requires the government to provide substantial justification for the interference with the right of free speech when attempting to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. The right to free speech includes other mediums of expression that communicate a message.
Questions have often arisen over the power of the federal government and the states to permit restriction on obscenity or pornography. While The Supreme Court has usually refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. With the evolution of time however, the exact definition of obscenity and pornography has changed.
Personal possession of obscene material in the home may not be prohibited by law. However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private.
The First Amendment also guarantees the right to assemble by which people are allowed to gather for peaceful and lawful purposes. The right to assembly includes the right to association and belief as well. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First Amendment. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual’s current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.
The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through litigation or other governmental action.
[iii] 512 U.S. 687 (U.S. 1994)
[iv] 374 U.S. 398 (U.S. 1963)
[v] 494 U.S. 872 (U.S. 1990)
[vi] 521 U.S. 507 (U.S. 1997)
[vii] 249 U.S. 47 (U.S. 1919)