The First Amendment
“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 one of the most cited amendments of the United States Constitution. The concepts of freedom of religion, speech, press, and peaceable assembly are at the core of our democracy.
Consider starting a discussion by asking the group their intitial reactions to or thoughts about the First Amendment. What seem to be the differences in their opinions toward the amendment? Are most supportive, cynical, or somewhere in between? Take note to see if anyone realizes that the very fact that they are able to sit and discuss whether or not the First Amendment is important (and to indirectly criticize the government) is a right granted to them by the First Amendment itself.
The focus of this guide will be freedom of speech, and also freedom of the press, which is very closely related. Freedom of religion differs enough in subject to merit a guide of its own. The fact that the First Amendment can be separated into different guides is another sign of its importance to civic education.
Why definitions? Words are extremely powerful, and dictionaries are always very precise about what vocabulary they use in their definitions. Freedom of speech is a concept containing two important words: “freedom” (or free) and “speech.” Have the group look closely at the definitions of the two words separately, and then compare and contrast them to the available definition of freedom of speech, as well as to the amendment itself. In these definitions, speech is defined as expressing oneself through speaking only. However, in this guide, it will become clear that freedom of speech extends to unspoken actions or non actions as well (in fact, the provided definition for it carefully uses ‘express’ instead of ‘speak’). Ask the group what they think about this. Also, discuss how you might define “freedom of speech” and why, paying close attention to what words the group wishes to include or exclude. (Definitions taken from Merriam-Webster Online )
- n. the quality or state of being free: as a: the absence of necessity, coercion, or constraint in choice or action b: liberation from slavery or restraint from the power of another (independence) c: the quality or state of being exempt or released usually from something onerous (freedom from care) d: ease, facility (spoke the language with freedom) e: the quality of being frank, open, or outspoken (answered with freedom) f: improper familiarity g: boldness of conception or execution h: unrestricted use (gave him the freedom of their home)
- n. a: a political right b: freedom, franchise, privilege, mean the power or condition of acting without compulsion. Freedom has a broad range of application from total absence of restraint to merely a sense of not being unduly hampered or frustrated (freedom of the press)
- n. a: the communication or expression of thoughts in spoken words b: exchange of spoken words (conversation)
- n. a: something that is spoken b: a usually public discourse
- n. The power of expressing or communicating thought by speaking
For Freedom of Speech
- n. the right to express any opinions without censorship or restraint
Voices in History
Quotations can help to point out values that are important to American society. The following collection of quotes indicate that freedom of speech has long been a part of our country’s dialogue on government. Many other quotes could be found by encouraging group members to explore quotation sites on the Internet and to discuss the quotes that most attract their interest.
“In a free state there should be freedom of speech and thought.” – Tiberius (Roman Emperor)
“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” – George Washington
“Free speech is intended to protect the controversial and even outrageous word; and not just comforting platitudes too mundane to need protection.” – Colin Powell
“The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.” – Justice Anthony Kennedy
“If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.” – John Adams (on freedom)
“The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.” – Oliver Wendell Holmes
Historical Sources and Study Questions
How does one decide what an American value might be? The soundest approach is by using core historical documents. Materials ingrained into American culture include the Declaration of Independence, the Federalist Papers, and the Constitution, as well as famous speeches, United States Supreme Court cases, and other sources documenting events or ideas from American history.
In the case of freedom of speech, several key documents are opinions of the United States Supreme Court in cases that tested and verified the freedoms granted in the First Amendment. These will be the core documents for this guide.
Before moving on to the historical sources and study questions listed here, consider starting a group discussion by asking how the group might identify an American “value”. Have the group make a list of what it considers to be “American values” and why. See if the values that group members come up with are similar to those used in these study guides.
Schenck v. United States (March 3, 1919)
Link to opinion at Legal Information Institute – Supreme Court Collection
Link to summary in lay terms at Wikipedia
During World War I, Congress passed an Espionage Act, which restricted behavior that was considered contrary to the war effort. Schenck was convicted under the espionage act for distributing anti-war pamphlets to new draftees into the military, discouraging them from being forced to fight in the war. The Supreme Court ruled against Schenck’s appeal, and also set a precedent for the extent to which the government must protect free speech.
- Two quotes from the opinion of this case established analytical boundaries: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” and “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Discuss with the group its understanding of, and reaction to the standard of review reflected in these quotes.
- The court ruled that Schenck’s activity could be found to be a clear and present danger, because certain things that might be allowed in peacetime, might not be allowed when the nation is at war, particularly those that present a direct threat to the nation’s security. What does the group think or feel about this opinion? How often have they heard the phrase: “clear and present danger?” What do they personally think that this phrase means? What personal experiences have they had that informs their views?
- Also note that in future cases the definition if this phrase has been changed. Consider having the group explore the Internet to see how this legal standard has changed since Schenck v. the United States and why.
- This case was argued under the First Amendment freedom of speech clause. However, Schenck was handing out pamphlets. This is a form of writing, rather than oral speech. What does the group think or feel about how the freedom of speech clause acts as an umbrella over many different forms of expression, rather than just speech alone? This is a good time to refer back to the group’s definition for freedom of speech—do pamphlets fit within it? Why or why not?
Gitlow v. New York (June 8, 1925)
Link to opinion at Legal Information Institute – Supreme Court Collection
Link to summary in lay-terms at Wikipedia
Gitlow v. New York is another landmark Supreme Court case that deals with the First Amendment freedom of speech clause. Gitlow was found guilty of inciting anarchy under a New York state law when distributing pamphlets discussing a working-class revolution. He argued that the law itself was unconstitutional, under the Fourteenth Amendment “due process” clause, which guarantees, among other things, “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
- This case established that, through the Fourteenth Amendment, the Bill of Rights extends to the States. Gitlow’s original conviction was upheld, but almost as an aside, the Supreme Court stated in the opinion: “For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This set a precedent, that eventually would extend nearly the entire Bill of Rights to the States. Focus the group on the opening words of the Bill of Rights: “Congress shall make no law,” which does not directly express anything regarding the states. Theoretically, states could have restricted many of the rights listed in the first amendment – establish state churches, monitor the press, etc. Does the group agree that these are fundamental human rights that must be protected by the 14th Amendment? Why or why not?
- We enjoy a great deal of freedom which might be limited if the First Amendment did not extend to state governments. How might things have been different if another decision had been made?
Tinker v. Des Moines (February 24, 1969) and Texas v. Johnson (June 24, 1989)
Links to opinions at Legal Information Institute – Supreme Court Collection: Tinker Texas
Links to summaries in lay-terms at Wikipedia: Tinker Texas
These are two very different Supreme Court cases. Tinker v. Des Moines deals with the right of a school district to prevent students from expressing freedom of speech while in school. Texas v. Johnson deals with a man’s right to burn the American flag in protest. Both, however, address an important concept related to the First Amendment – symbolic speech. In Tinker v. Des Moines, students wore armbands, and in Texas v. Johnson, the man was burning a flag; both were found to be protected under the First Amendment freedom of speech clause.
- Tinker v. Des Moines addressed issues raised when students wore black armbands in silent protest to the war in Vietnam. They were suspended from school for not removing the bands, and eventually the case made its way to the Supreme Court. The Supreme Court found that the suspension was a violation of the First Amendment. The Court notes that the students were peaceful and not disrupting the education process. The following section of the Court’s opinion reflects its reasoning: “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” The opinion is also careful to point out that First Amendment rights for teachers and students are “subject to application in light of the special characteristics of the school environment.” As the above quotes shows, in allowing student rights, the Court recognized student responsibilities or obligations to the State. Consider asking the group what it believes the rights and obligations are or should be? Why? How would the opinion apply if a student were to shout uncontrollably or disrupt the learning environment? What about strongly stating an unpopular opinion? What else may be in or out of bounds? What values are reflected in the group’s responses?
- In Texas v. Johnson, a protester burned a flag during the Republican National Convention in Dallas, Texas. He was arrested under a Texas law which prohibited flag desecration. However, the Supreme Court ruled that this law violated First Amendment rights. More specifically, the Court pointed out that: “The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.” This point is the heart of the First Amendment. Freedom of speech would lose a great deal of its impact if it only applied to things that mainstream society found suitable. Have the group discuss this concept. What range of views are present in the group, and what underlying data, assumptions, values, or reasoning support these views?
- Flag burning is still a subject of debate in the United States, since the flag carries with it a great deal of symbolic meaning. Think of other cases where some kind of “offensive or disagreeable” speech must be allowed under the First Amendment. How does allowing this form of expression benefit our country?
- Ask the group to think back to the 2004 election season. Both candidates frequently said things about American policy or their opponents that were offensive or disagreeable not only to their opponent, but large segments of the population. And yet, without the ability to say these things, would an election lose some of its meaning? Why or why not? What would the public lose if there were greater restrictions on what candidates or their supporters could say or do?
- Both Tinker v. Des Moines and Texas v. Johnson involve symbolic speech. That is, wearing an armband or burning a flag do not involve spoken or written words. Does the group consider actions such as these “speech?” Why or why not? What about creative art, or music that challenges the government? These forms of symbolic “speech” can spawn considerable discussion. How do the various interpretations offered within the group reflect the words of the Constitution, or the reasoning in the opinions?
Near v. Minnesota (June 1, 1931)
Link to opinion at Legal Information Institute – Supreme Court Collection
Link to summary in lay terms at Wikipedia
This case focuses on freedom of the press. It deals with Jay M. Near, who started a newspaper in Minneapolis that was found by the trial court to be “malicious, scandalous, and defamatory.” Under a Minnesota law, the state not only had the right to prosecute him for libel, or writing that is false and damaging to a person or institution’s reputation, but also had the right to restrain or cease future publication, or censor, future publications of the newspaper. The United States Supreme Court declared the law unconstitutional due to the right to restrain future publications. The group members can explore the meaning behind this decision.
The opinion states: “The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of liberty of the press as historically conceived and guaranteed?”
The Court answered this question with a quote from a famous English lawyer from the 18th century, Sir William Blackstone: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”
The opinion expands on this concept by quoting one of the founding fathers, Madison: “The security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in England, but from legislative restraint also.”
The opinion concludes that: “For these reasons we hold the statute to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the truth of the charges contained in the particular periodical. The fact that public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.”
To put this in other words, the question of the case was not whether the libel in the publication of Near was justified or not, whether Near could be prosecuted or not. Instead, the question was whether or not he could be restrained by the government from making future publications.
- Begin by having the group discuss the right that the Court is protecting. How does the group understand the phrase “freedom of the press?” What is the role of the press in a democracy? How would the public be affected if the press were not free?
- In the opinion of the Supreme Court, prior restraint or censoring is very detrimental to the freedom of the press. Have the group brainstorm ideas why prior restraint could be so dangerous – especially when lack of restraint can enable the publication of libelous material. Does the group see the distinction between holding the press accountable by prosecution for libelous or harmful material and censoring the press prior to publication? What is it and why? How would letting the government censor the press affect accountability of government officials? How would it affect the rights of the public in a democracy?
- Revisit the prior discussion on the First Amendment and its relationship to State laws or actions. How would the press be affected if the First Amendment restrained federal action, but not that of the State?
Free speech continues to be a focal point of our national dialogue. Nearly every day issues related to freedom of speech are reported, debated, and discussed in the media and the government.
As a group, go through a stack of newspapers or magazines, or browse the Internet, and have group members point out articles that reflect concerns they have about freedom of speech. Discuss these in the context of the ideas and concepts already pointed out from the definitions and historical sources. Ask group members how their own views were shaped by their own experiences with personal expression and the government. Ask them to consider if the article or report is promoting a particular point of view. What is being reported and what is not? Why? What additional information would the group like to have?
The following examples could help begin discussion.
Link at FindLaw.com
The Supreme Court has differentiated between commercial and political speech and protected “political speech” even when it is offered by a commercial entitiy. With regard to political speech, “The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 505-06 (7th Cir. 1998) (quoting Buckley v. Valeo, 424 U.S. 1, 13 (1976)); see also, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Simply put, even commercial entities have a right to engage in political speech.
For example, public utilities have a right to express and control their own political speech, even regarding regulated matters. As the Supreme Court held in Consolidated Edison Co. v. Public Service Comm’n of N.Y., 447 U.S. 530, 534 n.1 (1980), a utility’s “position as a regulated monopoly does not decrease the informative value of its opinions on critical public matters.”
In Consolidated Edison, the Court invalidated a rule prohibiting a utility company from addressing controversial political issues in its billing envelopes. Id. At 544. The Court recognized that utilities, as much as any other entities, possess First Amendment rights, and concluded that “limit[ing] the means by which [the utility] may participate in the public debate … strikes at the heart of the freedom to speak.” Id. At 535
The United States Supreme Court further addresses free speech rights of public utilities in Pacific Gas and Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986). The Court held that a regulatory order forcing a utility to disseminate, and thus effectively compelling it to respond to opinions in other groups with which it disagreed, violated the utility’s First Amendment rights . Id. At 20-21. In reaching that conclusion, the Court reiterated that the utility’s own speech, as expressed in a newsletter distributed in its monthly billing envelope, undoubtedly “receives the full protection of the First Amendment.” Id. At 8.
Purely commercial speech is in contrast, is afforded less protection than other forms of speech. Such speech may be regulated where it is more likely to deceive the public than to inform it. Friedman v. Rogers 440 U.S. 1 (1979).
To summarize, even though its purely commercial speech may be regulated and restricted, the right of a commercial entity to have and to express a political opinion is fully protected by the First Amendment.
- For an example of “purely commercial speech,” have group members think of commercials, and then examples of “false advertising,” which is regulated by the government.
- Ask the group to consider how commercial speech is different from political speech. How is the public affected differently by the two different kinds of speech?
- What is the government interest in regulating commercial speech? What are the dangers in regulating political speech, but not commercial speech? In regulating commercial speech, but not political speech? Have the group brainstorm many different aspects of this question.
Anti-SLAPP Laws in Missouri
Link to article at Missouri Bar
SLAPP is an acronym for “strategic lawsuit against public participation”. What does this have to do with free speech and the First Amendment? Mr. Kling’s article, cited here summarizes the purpose of SLAPP lawsuits: “[A SLAPP] lawsuit is filed solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their right to speak and to petition government. The primary purpose of a SLAPP lawsuit is not to resolve the allegation in the petition, but to punish or retaliate against citizens who have spoken out against the plaintiffs in the political arena and to intimidate those who would otherwise speak in the future.”
Kling describes one type of SLAPP lawsuit, a lawsuit brought against a community group protesting real estate development, and exercising its right to petition and publish its views.
Instead of attempting to try and directly silence this speech, which clearly would be unconstitutional, plaintiffs in SLAPP lawsuits instead discourage such speech by engaging the speakers in intimidating lawsuits and burdening them with expensive legal fees.
The Missouri anti-SLAPP law applies to “any action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or meeting.”
- SLAPPs and anti-SLAPP laws bring up an interesting aspect to freedom of speech. In these cases, no one is directly preventing these petitioners from speaking. In fact, these cases happen after the fact; canvassing, speaking, and protesting have already occurred. However, such suits can be viewed as punishing people for speaking, and discourage future groups from doing so. Discuss with the group a parallel between restraint of speech in this instance and the concern raised by the Court in Near v. Minnesota when it addressed a prior restraint of freedom of the press.
- Clearly in the minds of Missouri legislators, in order for freedom of speech to function, it cannot be obstructed by intimidating and costly SLAPP lawsuits. What do the group members think? What does the group believe should be the government’s role in preserving or protecting freedom of speech? Why?
Judith Miller Case
The Judith Miller case deals with the rights of the press to protect their anonymous sources in a court of law. After refusing to reveal some of her sources in a grand jury case dealing with leaks that revealed the identity of a CIA agent, Judith Miller was arrested. If the group members would like more information, typing “Judith Miller” in a search engine will bring up a great deal of related information. A good place to start is an article at NPR.org: “Lessons in the Judith Miller Case.”
This article raises several important questions, and the full implications of the case have yet to be seen. As a group, consider discussing the following:
- Do group members think that anonymous sources are important for journalists? Why or why not? What are the benefits and drawbacks of anonymous sources? How is this related to the rights guaranteed by First Amendment?
- Discuss with group members their thoughts on whether there should be laws that protect journalist-source confidentiality, much like a doctor-patient relationship. The article points out that in many states such laws exist, but there are no federal laws.
- Carl Bernstein (who along with Bob Woodward famously helped investigate the Watergate scandal) stated in a recent article in Vanity Fair that: “… there is no way our reporting on Watergate could have been done without the use of anonymous sources. In fact, in our first 100 stories, there is not a single named source who revealed anything of substance about the undercover activities of the Nixon White House.” If anonymous sources are truly that important for journalists to get valued information, are they essential for a free press?
Below are links to websites and resources that deal with freedom of speech.
Legal Information Institute, Cornell University – The Supreme Court Collection
First Amendment Schools
First Amendment Center (Vanderbilt University)
The First Amendment Project – (An advocacy group. The website includes a blog, which contains personal opinions. But this also provides the opportunity for group members to discern opinions from facts, and to agree or disagree.)
For a recent resource on civic education, see the following PDF: A Crisis in Civic Education.