First Amendment

Author:Archibald Cox

Page 1045

The First Amendment today protects the overlapping realms of the spirit?of belief, emotion, and reason?and of political activity against intrusion by government. The amendment directly forbids federal violation of the individual's RELIGIOUS LIBERTY, freedom of expression, FREEDOM OF ASSEMBLY, and associated political liberties. The amendment indirectly forbids state violation because it is held to be incorporated into the FOURTEENTH AMENDMENT'S restrictions upon the powers of the states. The body of law presently defining First Amendment liberties has been shaped not so much by the words or intent of the original sponsors as by the actors and events of much later history. The story is one of the continual expansion of individual freedom of expression, of the FREEDOM OF THE PRESS, and, until 1980, of widening SEPARATION OF CHURCH AND STATE.

The CONSTITUTIONAL CONVENTION OF 1787 saw no need to include guarantees of religious liberty, FREEDOM OF SPEECH, or other human rights. Most of the Framers believed in some such rights but supposed that the powers proposed for the new federal government were so severely limited by specific enumeration as to leave scant opportunity for either Congress or President to threaten individual liberty. The threats would come from state law and state governments. For protection against these, the Framers looked to the constitutions of the individual states. In the struggle for RATIFICATION OF THE CONSTITUTION, however, those who feared abuse of federal power exacted an undertaking that if the proposed Constitution were ratified by the states, the first Congress would be asked to propose amendments constituting a BILL OF RIGHTS. The First Amendment is thus the first and most far-reaching of the ten articles of amendment submitted by JAMES MADISON, proposed by Congress, and ratified by three-quarters of the states in 1791 solely as restrictions upon the new federal government, the powers of which were already severely limited.

The assumption that the amendment would have only a narrow function made it possible to ignore fundamental differences that would produce deep divisions more than a century later, after the amendment had been extended to the several states. The colonists held a variety of religious beliefs, though nearly all were Christian and a majority were Protestant. Whatever the limits of their tolerance back home in their respective states where one church was often dominant, they had reason to understand that the coherence of the federal union could be fixed only if the new federal government were required to respect the free exercise of religion. The men of South Carolina with their state-established religion and of Massachusetts with religion appurtenant to their state government could therefore support a prohibition against any federal ESTABLISHMENT OF RELIGION shoulder to shoulder with the deist THOMAS JEFFERSON and other eighteenth-century rationalists who opposed any link between church and state. Similarly, in applying ROGER WILLIAMS'S vision of "the hedge or wall of separation between the garden of the church and the wilderness of the world," there was originally no need to choose between his concept of protection for the church against the encroachments of worldly society and Jefferson's concept of protection for the state against the encroachments of religion.

The conditions and political assumptions of 1791 also made it easy to guarantee "the freedom of speech or of the press" without accepting or rejecting the Blackstonian view that these guarantees bar only licensing and other previous restraints upon publication, leaving the government free to punish SEDITIOUS LIBELS and like unlawful utterances. Because the original amendment left the states unhampered in making and applying the general body of civil and criminal law, except as the people of each state might put restrictions into its own constitution, there was no need to consider how the First Amendment would affect the law of LIBEL and slander, the power of the judges to punish CONTEMPT of court, or the operation of laws punishing words and demonstrations carrying a threat to the public peace, order, or morality. Such questions could and would arise only after the First Amendment was extended to the states.

The fulcrum for extending the First Amendment to the states was set in place in 1868 by the adoption of the Fourteenth Amendment, which provides in part: "? nor shall any State deprive any person of life, liberty or property without DUE PROCESS OF LAW."

The effects of the new amendment upon religious and political liberty and upon freedom of expression were slow to develop. As late as 1922 the Court declared in Prudential

Page 1046

Insurance Co. v. Cheek that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about "freedom of speech." Within another decade, however, the First Amendment's guarantee of freedom of expression had been incorporated into the Fourteenth by judicial interpretation. INCORPORATION of the other clauses, including the prohibition against laws "respecting an establishment of religion," followed somewhat later. Today the First Amendment restricts both state and federal governments to the same extent and in the same fashion.

Yet the historic sequence is important. Many questions of First Amendment law cannot be resolved truly in terms of the original intention because the questions could not arise while the original assumption held. Resolution of the issues was thus postponed until the middle decades of the twentieth century, an era in which liberalism, secularism, and individualism dominated American jurisprudence.

Disparate strains of thought were merged even in the writing of the First Amendment. Subsequent events, including current controversies, have poured new meaning into the words, yet the juxtaposition of the key phrases still tells a good deal about the chief strains in the philosophy underpinning and binding together guarantees of several particular rights.

The Framers put first the prohibition against any law "respecting an establishment of religion or prohibiting the free exercise thereof." The sequence attests the primacy ascribed to religion. The colonists belonged to diverse churches. Many had fled to the New World to escape religious oppression. Rigid though some might be in their own orthodoxy, probably a majority rejected the imposition of belief or the use of government to stamp out heresy. Certainly, they rejected use of federal power.

It was natural for the authors of the amendment to link "the freedom of speech, or of the press" with freedom of religious belief and worship. The one church was breaking up in late sixteenth-and seventeenth-century Britain. New faiths were emerging based upon individual study of the Holy Word. The man or woman who has discovered the road to salvation has a need, even feels a duty, to bring the gospel to others. Liberty of expression benefits more than the speaker. Suppression would deny the opportunity to hear and read the word of God, and thus to discover the road to salvation. Modern legal analysis recognizes the importance of the hearers' and readers' access to information and ideas in cases in which the author's interest lacks constitutional standing or would, if alone involved, be subject to regulation. (See LISTENERS ' RIGHTS.)

Concern for a broader spiritual liberty expanded from the religious core. The thinking man or woman, the man or woman of feeling, the novelist, the poet or dramatist, and the artist, like the evangelist, can experience no greater affront to his or her humanity than denial of freedom of expression. The hearer and reader suffer violation of their spiritual liberty if they are denied access to the ideas of others. The denial thwarts the development of the human potential, the power and responsibility of choice. Although concerned chiefly with religion, JOHN MILTON stated the broader concern in Areopagitica (1644), the single most influential plea, known to the Framers, for unlicensed access to the printing press.

The Enlightenment gave the argument a broader, more rationalistic flavor. Thomas Jefferson and other children of the Enlightenment believed above all else in the power of reason, in the search for truth, in progress, and in the ultimate perfectibility of man. Freedom of inquiry and liberty of expression were deemed essential to the discovery and spread of truth, for only by the endless testing of debate could error be exposed, truth emerge, and men enjoy the opportunities for human progress.

After JOHN STUART MILL one should perhaps speak only of the ability to progress toward truth, and of the value of the process of searching. The compleat liberal posits that he has not reached, and probably can never reach, the ultimate truth. He hopes by constant search?by constant open debate, by trial and error?to do a little better. Meanwhile he supposes that the process of searching has inestimable value because the lessons of the search?the readiness to learn, the striving to understand the minds and hearts and needs of other men, the effort to weigh their interests with his own?exemplify the only foundation upon which men can live and grow together.

It was not chance that America's most eloquent spokesman for freedom of speech, OLIVER WENDELL HOLMES, was also a profound skeptic. Dissenting in ABRAMS V. UNITED STATES (1919), he wrote:

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas?that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at...

To continue reading