Issues/topics covered in this chapter
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 to peaceably assemble, and to petition the Government from redress of grievances.
II. The Clauses
A. The Religion Clauses The religion clauses are two separate but intertwined clauses. First, the text forbids Congress making laws respecting “an establishment of religion.” The Establishment Clause – – – more properly denominated an anti-Establishment Clause or disestablishment Clause, but routinely called the Establishment Clause – – means at its most basic that there cannot be a government religion. This is distinct from many other nations in which there is a national religion, including Great Britain’s Church of England. More specific meanings of what an “establishment” of religion might mean have been the subject of numerous cases and controversies. Most vexing have been government support for religious education and for government displays of religiosity. Second, the text forbids Congress making laws that would prohibit “the free exercise” of religion. This “freedom of religion” clause means at its most basic that government cannot outlaw a religion. Again, the history of England is instructive including criminal trials for heresy. And again, the more specific meanings of “prohibiting” and “free exercise” have been the subject of numerous cases and controversies. The extent to which the government must accommodate religious beliefs and practices has been the most contentious.
B. The Free Speech Clause The First Amendment’s “freedom of speech” clause is the primary means of protecting expression. It is the clause that most people think of when they think of the First Amendment and it occupies a central place in First Amendment doctrine and theory. Indeed, other First Amendment rights are often grounded in the free speech clause.
C. The Press Clause The text’s “or of the press” language immediately after the prohibition of the abridgement of freedom of speech might seem to guarantee freedom of the press as a separate right. Doctrinally, the “free press” clause is often coextensive with the “free speech” clause.
D. The Assembly Clause The Assembly Clause has not been the source of rights or doctrinal explication. Some of the framers imagined the clause to be superfluous and its interpretation has proven this to be true.
E. The Petition Clause Like the Assembly Clause, the Petition Clause has not been the source of robust rights under the First Amendment. However, in Borough of Duryea v. Guarnieri, 564 U.S. ___ (2011), the Court held that the Petition Clause and the Speech Clause are not necessarily coextensive. In that case, a public employee brought a First Amendment claim that he had been terminated in retaliation for filing a grievance, i.e., a “petition.” The Court held, however, that the Petition Clause should be interpreted in this case as coextensive with Speech Clause doctrine which would require the employee to be speaking about a matter of public concern.
F. Association: The “Missing” Clause Note that the text of the First Amendment does not contain the word “association” although it is often thought to include it. This right, grounded in the Speech Clause, is often said to begin with the Court’s decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). In addition to the right to anonymity in belonging to an organization as in NAACP, other associational First Amendment rights include the ability of organizations to determine their membership in light of anti-discrimination laws.
III. International Perspectives
The rights encompassed in the United States Constitution’s First Amendment are generally included in human rights documents and other national constitutions. The prohibition of government religion, as mentioned above, is less universal. The Universal Declaration of Human Rights (1947) provides:
Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20. (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.
The International Covenant on Civil and Political Rights (ICCPR) (1966) provides:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
Note the qualifications and balancing in the ICCPR and the mandate for the prohibition of hate speech. When the United States adopted the ICCPR in 1992, it specifically included a reservation regarding Article 20:
That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.
U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992). The Senate Committee Report additionally implicitly rejected any balancing of free expression rights against other rights even if allowed under the ICCPR in favor of adherence to First Amendment doctrine, Senate Comm. on Foreign Relations, Report on the International Covenant on Civil and Political Rights, S. Exec. Rep. No . 23, 1 (102 nd Sess. 1992).
The Constitution of the Republic of South Africa (1996) is considered among the most progressive in the world. Consider its relevant provisions:
15. Freedom of religion, belief and opinion
1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
2. Religious observances may be conducted at state or state-aided institutions, provided that a. those observances follow rules made by the appropriate public authorities; b. they are conducted on an equitable basis; and c. attendance at them is free and voluntary.
a. This section does not prevent legislation recognising
i. marriages concluded under any tradition, or a system of religious, personal or family law; or
ii. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
b. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.
16. Freedom of expression
1. Everyone has the right to freedom of expression, which includes a. freedom of the press and other media; b. freedom to receive or impart information or ideas; c. freedom of artistic creativity; and d. academic freedom and freedom of scientific research.
2. The right in subsection (1) does not extend to
a. propaganda for war;
b. incitement of imminent violence; or
c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
17. Assembly, demonstration, picket and petition Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
18. Freedom of association Everyone has the right to freedom of association.
19. Political rights 1. Every citizen is free to make political choices, which includes the right a. to form a political party; b. to participate in the activities of, or recruit members for, a political party; and c. to campaign for a political party or cause.
IV. State Action and Incorporation Against the States
The United States Constitution has two important features that are vital in the consideration of its First Amendment. First, there is the requirement of “state action” as evinced by the opening words of the text: Congress shall make no law. Like other constitutional protections (with the notable exception of the Thirteenth Amendment), the First Amendment is a guarantee against infringement by the government rather than private actors. The First Amendment is notable, however, in that people often invoke it against when they are “silenced” by criticism or even interrupted on a talk show. For example, Dr. Laura Schlessinger, whose racial epithets on her radio show have caused criticism, announced her retirement from the show in 2010 reportedly claiming that she wants “to regain my First Amendment rights.” Sarah Palin also invoked the First Amendment in two tweets defending Schlessinger:
Dr.Laura: don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”);
Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists. And b thankful 4 her voice,America!
Second, there is the question of federalism. Importantly, while the First Amendment constrains only government, it constrains all governments. Although the text begins “Congress shall make not law,” the provisions of the First Amendment have been applied to the states (and thus their subdivisions) through the process of selective incorporation under the Fourteenth Amendment’s Due Process Clause.
The First Amendment’s Speech Clause is considered the first of the rights in the Bill of Rights to be incorporated against the states, see Gitlow v. New York, 268 U.S. 652 (1925). In Near v. Minnesota, 283 U.S. 697, 707 (1931), the Court noted discussed the Press Clause and stated it “is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”
The Religion Clauses were likewise deemed applicable to the states in the Twentieth Century. In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Court held that the “fundamental concept of liberty embodied” in the Due Process Clause of the Fourteenth Amendment “embraces the liberties guaranteed by the First Amendment.” It continued, the “First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” However, because Cantwell did not involve the Establishment Clause, the case of Everson v. Board of Education, 330 U.S. 1 (1947), decided seven years later, is generally considered authority for the proposition that the Establishment Clause applies with equal force to the states as to the federal government.
There is one current United States Supreme Court Justice who has expressed the opinion that the Establishment Clause is not incorporated against the states. See Town of Greece v. Galloway, 572 U.S. __ (2015) (Thomas, J., concurring); Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49-51 (2004) (Thomas, J., concurring in judgment); Van Orden v. Perry, 545 U. S. 677–693 (2005) (Thomas, J., concurring); Zelman v. Simmons-Harris, 536 U. S. 639–680 (2002) (Thomas, J., concurring). Justice Thomas has argued that unlike the Free Exercise Clause, which protects an individual right, the “text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.” Elk Grove, 542 U.S. at 49. Under Thomas’s view, states could “establish” a religion, or, at the very least, the actions of states regarding establishment should be analyzed with less rigor. The vast majority of First Amendment practitioners and scholars, as well as judges, consider the Establishment Clause to be applicable to the states and their subdivisions.
V. History: The Firstness of the First Amendment
It is often argued that the First Amendment contains the “first freedoms” and were so highly valued by the Framers of the Constitution that they were placed first.
However, the history is a bit more nuanced. Consider the original Articles of Amendment to the Constitution:
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine (1789). Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Original Amendments PASSED by Congress to be ratified by States
Article the first … After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second … No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Article the third … 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.
Articles/Amendments One and Two are not ratified by the States. Thus, Article/Amendment Third becomes Article/Amendment First: the current First Amendment. (Note that Article/Amendment Two becomes the 27th Amendment in 1992.)
Nevertheless, the Framers of the Constitution were undoubtedly influenced by the history of England and their own experiences regarding both speech and religion. In terms of speech and press, the “licensing” of publications and criminal prosecutions for sedition were important. In terms of religion, the violent history of religious conflicts in Great Britain and the rest of Europe were paramount, especially given that the some of the states were colonies founded on religious motives.
VI. Theoretical Perspectives
In addition to the usual theoretical perspectives governing constitutional interpretation such as originalism and living constitutionalism, the First Amendment provokes some distinct theoretical perspectives.
The absolutist perspective of the First Amendment gains credence from the language of the Amendment: Congress shall make “no law” as compared to other restraints in the Bill of Rights such as the Fourth Amendment’s language of “unreasonable searches and seizures.” While this absolutist perspective has not prevailed, it is often evoked, explicitly or implicitly, in First Amendment arguments.
The notion of free speech is often premised on a “marketplace of ideas” metaphor that appeared in early cases. This capitalist sentiment conceptualizes a free enterprise competition requiring little, if any, government regulation. Another influential view is that of Alexander Meiklejohn which envisions a more proactive view for government in ensuring democratic processes; this might mean that the government regulates abusive speech, for example, in the interest of democracy. A good discussion comparing these two views is Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 Cal. L. Rev. 2353 (2000). Other views highlight an individualistic understanding of free speech, akin to other rights accorded to autonomous persons.
However, no overarching theoretical perspective explains the disarray of free speech theories and doctrines, especially because the distinctions between theory and doctrine are often blurry. Even the question of whether expression qualifies as speech can be complicated. The categorization of types of expression – – – for example political or commercial – – – is debated. Moreover, the exclusion of some types of speech, for example obscenity, is also fraught. Concepts such as “chilling speech” or “secondary effects” waver between theory and doctrine.
Similarly, the status of religion is not amenable to an overall theoretical perspective. In some senses, the two religion clauses are at odds if each is extended to its logical conclusion. The Establishment Clause, more accurately called the anti-Establishment Clause, generally means that the government should not put its imprimatur on religion. However, the Free Exercise Clause generally means that the government should accommodate religious beliefs. The issue is often when “accommodation,” especially of majority beliefs, becomes an “establishment” of religion objectionable to minority religious believers or nonbelievers.
Additionally, protection of religious expression has been subject to legislative action. These protections have prompted several important and some controversial recent United States Supreme Court cases (included in Chapter Fourteen).
VII. The Challenges of First Amendment Cases and Controversies
There are several challenges to any study of the First Amendment.
First, many First Amendment cases, especially those involving speech and speech-related issues, evoke numerous doctrines. At times, the issue is what doctrine should apply. As Professor Julie Nice has explained, a typical dispute can involve many of First Amendment doctrines allowing the Court to “choose from among these various doctrines to frame and structure its analysis” with an eye toward the likely result. Julie A. Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 HASTINGS CONST. L.Q. 631, 639-40 (2011).
In her analysis of Christian Legal Society v. Martinez, Professor Nice contends that Martinez is a “textbook example” of the problem. In Martinez, the Court could have focused on the law school’s policy as content or even viewpoint based OR whether the law school created a public forum OR the public university setting OR the conditions of the benefit of student group recognition OR compelled speech or compelled association OR free exercise of religion OR on the prohibition of establishment of religion. Professor Nice suggests that a fundamental question is whether the Court has been consistent in selecting which doctrine will frame its decision. Id.
There is a good argument that the Court has not been consistent in selecting doctrinal frames. Martinez may be a “textbook example,” but it is not at all unusual. Many – – – perhaps even the majority – – – of cases involve a choice of doctrine. This makes studying and litigating First Amendment cases challenging.
A second challenge is doctrinal incoherence even within distinct doctrines. This is not to say that there are not settled tests; there are. This makes the First Amendment a consistent choice for those drafting Bar Examination questions! Nevertheless, the Court is often undermining its own previously announced tests.
Third, the sheer number, the often extensive length, and the regularity of fractured and closely divided opinions by the United States Supreme Court can make First Amendment study challenging. Until the First World War, the Court devoted little attention to the First Amendment, but since then it has decided more than 500 cases that discuss the First Amendment. Of course, not all of these cases are landmark cases or rest exclusively on First Amendment grounds. Nevertheless, there is much material.
Fourth and finally, other federal courts as well as state courts routinely decide First Amendment cases, many of which are groundbreaking or involve cutting-edge and unresolved questions of law.
These four challenges implicate this Casebook.
First, because of numerous doctrinal frames within a single case, there is little agreement about organization and placement of cases within that organization. Thus, casebooks and study aids deploy a dizzying array of schemes and references to illustrative cases. Generally speaking, however, there is sharp divide between the Speech and Religion Clauses (although a case may address both of these). Additionally, within speech, there are distinct doctrines governing the press, public employees and public school students, and commercial speech, although these doctrines often overlap with other doctrines. This Casebook deploys an organization that has worked well in previous years and points to doctrinal selection issues as they occur.
Second, and not unlike other constitutional cases, the Court’s articulation of a test in one case may be undermined by later cases. This Casebook clearly identifies the landmark “tests” and then examines their status.
Third, the number and length of the Supreme Court’s First Amendment cases makes for difficult editing choices. The major cases are all included or referenced. The Casebook’s inclusion preference has generally been toward more recent cases and these cases have been more lightly edited to provide more context for current controversies.
Fourth and finally, the Notes reference lower federal court and state court cases. These cases often provide important context for developing doctrine and issues.
VIII.United States Supreme Court Terms: Recent Cases
One method of starting to study the First Amendment is to consider the Court’s recent cases.
A quick overview of the cases can serve as an introduction to current First Amendment cases and controversies that have reached the United States Supreme Court.
Term Elonis v. United States (the “facebook threats” case in which the Court opted for a statutory construction and sidestepped the First Amendment issue).
Reed v. Town of Gilbert, Arizona (sign ordinance)
Holt v. Hobbs (a prisoner’s beard as freedom of religion)
Walker v. Texas Division, Sons of Confederate Veterans (denial of specialty license plate)
Williams-Yulee v. The Florida Bar (professional responsibility sanction against judicial candidate who solicited campaign contributions).
Term Sebelius v. Hobby Lobby Stores (religious-based statutory challenges to the contraception “mandate” of the Affordable Care Act)
Harris v. Quinn (quasi-labor law involving personal care providers and representation for Medicaid reimbursement)
McCullen v. Coakley (abortion clinic buffer zone for protest)
McCutcheon v. Federal Election Commission (campaign finance) Susan B Anthony List v. Driehaus (election law prohibiting false statements)
Town of Greece v. Galloway (prayer at town meeting)
United States v. Apel (protest outside military installation)
Wood v. Moss (protest zones for anti-Bush and pro-Bush demonstrators)
(CC BY-NC-SA4.0), except where otherwise noted.