The US Bill of Rights: The First Amendment

From the lecture series: Understanding the US Government

By Jennifer Nicoll Victor, Ph.D., George Mason University

Religious freedom, freedom of speech, and freedom of the press are seen as essential components for preservation of a free and democratic society. Read to know how the US Constitution has ensured this freedom for their citizens.

Image shows rolled copy of the US Constitution on top of the US flag.
The First Amendment guarantees religious freedom, freedom of speech, and freedom of the press. (Image: W. Scott McGill/Shutterstock)

Civic Liberties

Civil liberties and civil rights are core features of American political institutions. A civil liberty is a specific individual right that is protected from government infringement under the US Constitution. One can think of it as a freedom from government power.

Religious freedom, freedom of speech, and freedom of the press are seen as essential components of a free society.

Learn more about civil liberties and freedoms from government.

Religious Freedom

The First Amendment guarantees two religious freedoms. There is a clause that refers to the establishment of religion and a separate clause that refers to the exercise of religion.

Freedom of religion guaranteed in the First Amendment refers to two separate civil liberties: one that prevents government from recognizing any particular religion as the state’s religious preference, and one that provides people the freedom to practice religion as they see fit.

This is a transcript from the video series Understanding the US Government. Watch it now, on The Great Courses Plus.

Establishment Clause

For the establishment clause, the Constitution says, “Congress shall make no law respecting an establishment of religion”. There are three possible ways to interpret this clause.

First, it might mean that the government should not establish a national church such as the Church of England or it might mean that government should show no preference for any particular religion over another religion. It could also mean that some people think of this clause as establishing a separation between church and state.

What the Supreme Court ruled is that states can fund religious institutions for their secular activities, but they cannot fund religious activities or provide financial support for religious training, such as to become a minister.

In order for modern laws to be legally consistent with this establishment clause in the First Amendment, the conditions must be seen as neutral.

Freedom to Exercise Religion

The freedom to exercise religion is a separate civil liberty guaranteed in the First Amendment. The American judicial system attempts to distinguish actions from beliefs, so that the state may be involved with protecting individual or public safety, without interfering with individual religious beliefs.

The standard for evaluating whether or not religious practice is constitutional is that states may regulate religious practice when it becomes ‘abhorrent to most members of society’.

Learn more about the creation of the Constitution.

Freedom of Speech

Freedom of speech is seen as one of the most important rights in a democracy.

Despite the importance of free speech, however, American history is flush with examples of government restricting speech rights. For example, Congress first passed a Sedition Act in 1798, making it illegal to print false or malicious newspaper stories about the government.

The first serious attempt by the Supreme Court to establish a test for free speech came in 1919. During World War I, Congress passed the Espionage Act of 1917, which prohibited forms of dissent if they could harm the nation’s efforts in fighting the war.

The constitutionality of the act was challenged and when the Supreme Court heard the case of Schenck v. The United States in 1919, Justice Oliver Wendell Holmes wrote that the espionage act was unconstitutional.

‘Clear and Present Danger’ Test

Photograph of Justice Oliver Wendell Holmes.
Justice Holmes had established the ‘Clear and Present Danger’ test. (Image: Harris & Ewing/Public domain)

In his ruling, Justice Holmes established the ‘clear and present danger’ test. This was the idea that you cannot shout fire in a crowded movie theater because the public panic and stampede that would result as a direct consequence of that speech could harm people.

Justice Holmes reasoned that the collective safety of moviegoers, for example, was more important than any individual’s right to scream the word “Fire!”

However, the ‘Clear and Present Danger’ test is no longer the test that is used today. The modern standard for freedom of speech is about whether or not the speech would ‘incite lawless action’.

Learn more about the civil rights.

Power to Limit Speech

Libel is published or written information that harms a person’s reputation, and slander is the same thing but in spoken form. In the case of libel or slander, there are theoretical limits on speech but they are not seen often.

The Supreme Court has ruled that libelous speech can only be limited when it is proved to be both untrue and purposefully malicious.

When it comes to so-called ‘hate speech’, or speech that is directed at some groups of people, the court has generally ruled that such speech is protected under the First Amendment, despite many local governments’ attempts to outlaw it.

So-called ‘fighting words’ that might incite ‘immediate breach of the peace’ can also be an illegal form of speech. Also, public schools can restrict the speech of their under-aged students.

In addition, many forms of commercial speech, or advertising, are limited, such as restrictions on cigarettes ads on television, or the federal prohibition of advancing false and misleading claims on product promotions.

Freedom of the Press

To talk about the incredibly strong power known as Freedom of the Press found in the First Amendment to the Constitution, let us refer to the year 1971. By that time, the United States involvement in the conflict in Vietnam had become increasingly controversial.

Public opinion had turned against the war, and the American public was at the beginning stages of learning about some unethical, illegal, and morally questionable practices that the US government took during the winding down of its involvement in Southeast Asia.

Photo of the wall at the Vietnam Memorial with the US flag in front.
During the Vietnam War, when the US involvement in the conflict had become increasingly controversial, a set of secret documents were leaked to The New York Times. (Image: Adam Parent/Shutterstock)

A set of secret documents that originated in the Pentagon—the headquarters of the US military—were illegally photocopied, and then leaked to The New York Times.

The documents became known as the ‘Pentagon Papers’, and the US Government sued to prevent their publication arguing their release would hurt the war effort, as well as the fact that the documents were stolen.

However, in the landmark case New York Times v. United States in 1971, the Supreme Court ruled that any system of prior restraint on the press is likely to be unconstitutional, and that the government carries a heavy burden to show justification for the imposition of such a restraint.

Prior Restraint

Since the ruling of New York Times v. United States in 1971, the legal standard for determining whether or not speech in the form of press is protected by the First Amendment is known as ‘prior restraint’.

Under this test, the burden of proof is on the government, not the publisher, to show that printing something would somehow be harmful. The press is given the benefit of the doubt and has wide latitude to print all sorts of material. This core freedom is seen as an essential component of protecting democracy.

Common Questions about The First Amendment

Q: Which are the two religious freedoms guaranteed in the First Amendment?

The First Amendment guarantees two religious freedoms. There is a clause that refers to the establishment of religion and a separate clause that refers to the exercise of religion.

Q: What was the Sedition Act passed by the Congress in 1798?

Congress first passed a Sedition Act in 1798, making it illegal to print false or malicious newspaper stories about the government.

Q: What were the ‘Pentagon Papers’?

‘Pentagon Papers’ was a set of secret documents that originated in the Pentagon, and were illegally photocopied and leaked to The New York Times.

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