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Civics 101: First Amendment

Amendment I

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.

The First Amendment is (arguably) the most-referenced of the Bill of Rights.  And it is (arguably) the most misunderstood.

So Small, So Big

The First Amendment is very concise, but it covers so much.  There are 4 distinct sections dealing with very different situations. They are all interconnected, but must be addressed according to their own situations.

Those sections are:

  1. Religion
  2. Speech & the press
  3. Assembly
  4. Greiveances

That’s a lot of ground to cover in 45 words1about 1/3 of which are article and conjunctions.  So let’s look at each part (pour yourself another cup of coffee and sit back; this is going to take a while)

Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

This is known as “the establishment clause” and commonly referred to by the phrase “separation of church and state”.  That phrase doesn’t come from the Constitution, but from a letter that Thomas Jefferson wrote to the Danbury Baptist Association in Connecticut in 1802.  In it he said:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

While the phrase is not in the Constitution, it’s a convenient shorthand for what the 1A says:

  1. The government can not require or promote any religion
  2. The government can not prevent you from practicing your religion

This has been a tricky issue from the beginning, and in modern times it’s most often an issue in schools. The simplest way to break down how SCOTUS2the Supreme Court Of The United States has interpreted it is this:

  1. At a public school, the football coach (a government employee) can not require that students pray or lead the team in prayer (when acting as coach).
  2. The school can not prohibit the team (and/or fans–including the coach) from praying on their own. If a local preacher stands up in the stands and says “let us pray!”, the school can’t stop him (though the fans might tell him to sit down so the game can start).

Speech and the Press

Congress shall make no law […] abridging the freedom of speech, or of the press

This is a topic that could fill volumes.  But there are a few basics that need to be clearly understood.

Free Speech vs. Freedom of Speech

“Free speech” is an ideal.  It means we stand by the idea that everyone should be able to speak about anything–though not without possible repercussions.

“Freedom of speech” is a right guaranteed by the First Amendment.  It means that the government can not prevent you from speaking–or make you say something you don’t want to.  It does not mean that you are allowed to say whatever you want in a newspaper, on social media, or in a private establishment.

Twitter, for example, enjoys the protection of the First Amendment, but it is not bound by it.

Limits and Absence of Limits

There are a few limits on freedom of speech.   Chief among them is defamation–intentionally telling (believable) lies about someone in order to hurt them.  If you say “Bob’s a no-good puppy-thief”, that’s not defamation because it’s not meant to be literal.  If you write a blog post detailing Bob’s criminal activity of stealing puppies, that’s defamation.

Another limitation is “fighting words”.  These are situations where a person actively encourages people to commit immediate acts of violence.

A commonly quoted phrase is “You can’t yell ‘fire’ in a crowded theatre”.   This is not entirely correct.  The full phrase is from Oliver Wendell Holmes:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic

The key is “falsely” and “causing a panic”.  It’s not about the words, it’s about the result.

Assembly

Congress shall make no law […] abridging […] the right of the people peaceably to assemble

The right to gather in groups–peacefully–has been a cornerstone of our ability to effect change in government and society since the founding of this country.   At its most basic is simply says that the government can’t prevent you from being around other people.

As we have discovered recently, however, there are limits on that freedom.  When a gathering has the potential to cause harm to others, protecting those others may become more important.

Redress of Grievances

Congress shall make no law […] abridging […] the right of the people […] to petition the government for a redress of grievances.

This simply says that you are guaranteed the right to complain about the government to the government and demand that something be done–and you can’t be punished for doing so.

End Note

All of the above is the simplest of explanations.  The details of the First Amendment are constantly argued and debated in our courts.   There are no simple answers.

Footnotes

Footnotes
1 about 1/3 of which are article and conjunctions
2 the Supreme Court Of The United States

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