First Amendment

• Author: Jeffrey Lehman, Shirelle Phelps

Page412

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 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.

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 establishment 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 American

Page413

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 widespread, 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 discussions 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 political 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 England, 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. Maryland, 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, imprisonment, BANISHMENT, and death. The Free Speech Clause of the Constitution was drafted to protect 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

Burning a U.S. flag to protest government policies is protected as symbolic expression under the First Amendment.

AP/WIDE WORLD PHOTOS

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 circumstances. 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 candidates 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 sitting judges may say about issues, in hopes of preserving judicial independence and assuring the public that the justice system is impartial. The Court, in Republican Party of Minnesota v.

Page414

White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed.2d 694 (2002), rejected this approach as incompatible with the First Amendment. The restrictions were unconstitutional because they regulated speech based on content and burdened an important category of speech.

Speech that Incites Illegal Activity and Subversive Speech Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States, people hand out leaflets imploring neighbors to write to Congress about a particular subject, or to vote in a certain fashion on a REFERENDUM, or to contribute financially to political campaigns and civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures include resisting the draft during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.

The U.S. Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio, 395U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). Applying the Brandenburg test, the Court ruled that the government could not punish an anti-war protester who yelled, "[W]e'll take the fucking street later," because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time" (Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303[1973]). Nor could the government punish someone who, in opposition to the draft during the VIETNAM WAR, proclaimed, "[I]f they ever make me carry a rifle, the first man I want in my sights is [the president of the United States]L.B.J." (Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 [1969]). Such politically charged rhetoric, the Court held, was mere hyperbole and not a threat intended to be acted on at a definite point in time.

Fighting Words Fighting words are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed" (Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031[1942]). Whereas subversive advocacy exhorts large numbers of people to engage in lawless conduct, fighting words are directed at provoking a specific individual. Generally, only the most inflammatory and derisive epithets will be characterized as fighting words.

Fighting words also should be distinguished from speech that is merely offensive. Crude or insensitive language may be heard in a variety of contexts?at work, on television, even at home. The U.S. Supreme Court has ruled that speech that merely offends, or hurts the feelings of, another person?without eliciting a more dramatic response?is protected by the First Amendment. The Court has also underscored the responsibility of receivers to ignore offensive speech. Receivers can move away or divert their eyes from an offensive speaker, program, image, or message. In one case, the Court ruled that a young man had the right to wear, in a state courthouse, a jacket with the slogan Fuck the Draft emblazoned across the back, because persons at the courthouse could avert their eyes if offended (Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [1971]). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a sublimated variation such as Resist the Draft.

Obscenity and Pornography State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and eliding unacceptable portrayals. Over the years, libidinous books such as Lady Chatterly's Lover (1951?1975) and adult movies such...