Schultz D. Encyclopedia of the United States Constitution

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Many decades would pass before black citizens

fully regained this right. In 1915, the Supreme

Court struck down grandfather clauses (Guinn

v. United States, 238 U.S. 347). It struck down

“white primary” laws in 1944 (S

MITH V. ALLWRIGHT,

321 U.S. 649). Such laws allowed political parties

to exclude blacks from membership, which then

prevented them from voting in primary elections.

And in 1960, the Court ruled that states could not

gerrymander their legislative districts to minimize

black voting power (G

OMILLION ET AL. V. LIGHTFOOT,

AYOR OF TUSKEGEE, ET AL. 364 U.S. 339).

Congress took several small steps to enforce the

Fifteenth Amendment in the late 1950s and early

1960s, but massive civil rights demonstrations,

combined with the 1964 murder of white activ-

ists attempting to register black voters in Missis-

sippi, convinced it to pass a comprehensive law

guaranteeing black citizens the right to vote. The

1965 Voting Rights Act outlawed literacy tests and

other Jim Crow laws designed to prevent blacks

from voting and gave federal examiners the power

to monitor voting laws and register black citizens

to vote. Its effects were immediate: 250,000 south-

ern black voters registered to vote within a year.

For more information: Finkelman, Paul. Afri-

can Americans and the Right to Vote. New York:

Garland, 1992; Vallely, Richard M. The Two Recon-

structions: The Struggle for Black Enfranchise-

ment. Chicago: University of Chicago Press, 2004.

—Ellen Ann Andersen

One of several commemorative prints marking the enactment on March 30, 1870, of the Fifteenth Amend-

ment and showing the parade celebrating it, which was held in Baltimore, Maryland, on May 19 of the same

year

(Library of Congress)

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First Amendment (1791)

The First Amendment to the U.S. Constitution

prohibits Congress from interfering with the

expressive freedoms of individuals and persons

such as corporations, labor unions, and politi-

cal parties. It prohibits the government from

abridging or limiting freedom of speech, press,

assembly, religion, or the right to petition

the government. In addition, it also prohibits

the government from establishing religion. The

First Amendment is one of the original 10 Bill

of Rights that amended the Constitution in 1791

and was proposed by James Madison. While

originally this amendment did not apply to the

states, it has been incorporated via the due pro-

cess clause of the Fourteenth Amendment.

Now all of its clauses also restrict state and local

governments.

Many legal philosophers consider the First

Amendment to be the most important of all the

provisions of the Bill of Rights, yet there was sig-

niﬁ cant debate over whether it or any of the Bill of

Rights was necessary. Anti-Federalists criticized

the proposed new constitution of 1787 as giv-

ing too much power to the national government

and as defective because it lacked a bill of rights.

Alexander Hamilton, writing in Federalist 85,

said that no bill of rights was necessary because,

among other things, nothing in the proposed Con-

stitution gave the national government the power

to limit freedom of the press. Thus, a bill

of rights was unnecessary since it would seek to

limit a power Congress did not possess. Few were

impressed by this argument, and eventually Mad-

ison agreed to introduce a bill of rights in Con-

gress in 1787. When he did that, the rights that

eventually worked their way into the present First

Amendment were at the top of the list of items to

be addressed.

The First Amendment contains six restrictions:

The government cannot 1) establish a religion, 2)

prohibit the free exercise of religion, 3) abridge

freedom of speech, 4) abridge freedom of the

press, 5) abridge the right to peaceful assembly,

or 6) deny the right to petition the government.

Many of the prohibitions here directly relate

back to grievances the founders had against King

George III and which they described in the Dec-

laration of Independence.

Efforts to interpret the six prohibitions in the

First Amendment have resulted in literally thou-

sands of U.S. Supreme, lower federal, and state

court cases. At the core of these cases are ques-

tions about what exactly the First Amendment is

prohibiting. For example, What does it mean to

establish a religion? What is speech? What con-

stitutes a peaceful assembly? While some would

contend that a literal or formal reading of the

Constitution produces clear answers to these

questions, most are not persuaded. Instead, efforts

either to interpret what the framers intended or

to ascertain what the basic goals of the different

clauses or prohibitions are, or even efforts to apply

a 200-year-old document to new technologies such

as the World Wide Web and YouTube (which the

framers could not have foreseen), have resulted in

many questions about what the First Amendment

means.

The first two prohibitions of this amend-

ment address religion. When one reads the First

Amendment one notices that there are two dis-

tinct injunctions regarding religion, stating

that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof.” These two clauses, referring

to establishment of religion (establishment

clause) and free exercise (free exercise clause)

raise important questions in addition to the ones

noted above. Particularly, what is a religion? Do

religious beliefs include simply ideas or beliefs

about a god, or do they include particular prac-

tices, such as a religious service, animal sacriﬁ ce,

or baptisms? Does the idea of religion only refer

to a belief in a god, or could not other ﬁ rmly held

beliefs be considered a form of religion? Is devil

worship a religion?

The free exercise and establishment clauses

independently serve different purposes but can

also be in conﬂ ict. Generally, one can look at the

free exercise and establishment clauses separately,

but on occasion they can conﬂ ict. For example,

in dissent in A

BINGTON TOWNSHIP V. SCHEMPP, 374

U.S. 203 (1963), Justice Potter Stewart indicated

a paradox:

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[T]he fact is that while in many contexts the

Establishment Clause and the Free Exercise

Clause fully complement each other, there

are areas in which a doctrinaire reading of the

Establishment Clause leads to irreconcilable

conflict with the Free Exercise Clause. A sin-

gle obvious example should sufﬁ ce to make the

point. Spending federal funds to employ chap-

lains for the armed forces might be said to violate

the Establishment Clause. Yet a lonely soldier

stationed at some far-away outpost could surely

complain that a government which did not pro-

vide him the opportunity for pastoral guidance

was afﬁ rmatively prohibiting the free exercise of

his religion. And such examples could readily be

multiplied.

As Justice Stewart noted, both the free exercise

and establishment clauses stipulate distinct con-

stitutional requirements, yet the difﬁ cult part is

deﬁ ning what both of the clauses require and how

to sort out conflicts between them. Performing

both of these tasks is not the product of scientiﬁ c

deduction but involves difﬁ cult political and social

choices that do not easily yield a correct answer.

In the 1940 case Cantwell v. Connecticut, 310

U.S. 296, the Supreme Court declared that the

free exercise of religion was a fundamental right

that could only be limited with a compelling state

interest. But what is religion, and what are reli-

gious beliefs? Do they include all beliefs and prac-

tices or only some? In United States v. Seeger, 380

U.S. 163 (1965), the Supreme Court attempted to

answer this question when it sought to determine

what type of beliefs constitute a religion, in this

case, granting one an exemption from military ser-

vice as a conscientious objector:

Does the term “Supreme Being” as used in s 6(j)

mean the orthodox God or the broader concept

of a power or being, or a faith, “to which all else

is subordinate or upon which all else is ultimately

dependent”? . . . Some believe in a purely per-

sonal God, some in a supernatural deity; others

think of religion as a way of life envisioning as

its ultimate goal the day when all men can live

together in perfect understanding and peace.

There are those who think of God as the depth

of our being; others, such as the Buddhists, strive

for a state of lasting rest through self-denial

and inner purification; in Hindu philosophy,

the Supreme Being is the transcendental real-

ity which is truth, knowledge and bliss . . . The

essence of religion is belief in a relation to God

involving duties superior to those arising from

any human relation.

In Seeger, the Court argued that religious belief

is some type of sincere commitment to a set of

principles. But could a set of philosophical beliefs

constitute a religious belief? In W

ISCONSIN V. YODER,

406 U.S. 205 (1972), a case involving the refusal of

the Amish to send their children to school beyond

eighth grade, the Court claimed no:

A way of life, however virtuous and admirable,

may not be interposed as a barrier to reason-

able state regulation of education if it is based

on purely secular considerations; to have the

protection of the Religion Clauses, the claims

must be rooted in religious belief. Although a

determination of what is a “religious” belief or

practice entitled to constitutional protection may

present a most delicate question, the very con-

cept of ordered liberty precludes allowing every

person to make his own standards on matters of

conduct in which society as a whole has impor-

tant interests.

Here, the Court seeks to distinguish secular or

philosophical beliefs from religious ones. But that

is not an easy task. What if one’s religious beliefs

are quite unorthodox, involving the belief that the

supreme being is some ultimate cosmic force that

created the universe in a big bang billions of years

ago. Is this a secular or spiritual belief? The com-

ments in Yoder seem to imply that society, and not

the individual, must at some point make a deter-

mination as to what is a religious belief.

Another question growing out of efforts to

deﬁ ne religion involves identifying what features

or facets are important to religion. Besides iden-

tifying beliefs, most religions also have important

practices and traditions that are crucial to their

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faith. Many religions have communions, religious

services, prayers, or other practices that are per-

formed as part of a religious ceremony. May the

state or government regulate these practices, or

does the free exercise of religion give one a right to

do whatever one wants as long as it is part of a reli-

gious ceremony? Could one engage in polygamy?

Use of illegal drugs? Animal sacrifice? Human

sacriﬁ ce?

In United States v. Seeger, the Supreme Court

sought to determine how far free exercise pro-

tects religiously motivated behavior. The Court

stated that “[t]here are clear limits here, and reli-

gion must conform to secularized rules regarding

behavior. Thus, ‘belief’ can not be regulated, but

practices can.” Despite the fact that certain prac-

tices are very much linked to and deﬁ ne a religion,

the courts have distinguished religious belief from

practice, claiming the former cannot be regulated

while the latter may.

In E

MPLOYMENT DIVISION V. SMITH, 494 U.S. 872

(1990), the Court again sought to deﬁ ne the limits

of free exercise and government regulation. Here,

the majority of the Supreme Court held that it

was permissible to deny unemployment beneﬁ ts

to individuals who had been ﬁ red from their job

because they tested positive for the use of peyote

(a drug). The peyote was used during a Native

American religious ceremony that took place

outside work. Here again, the Court invoked the

belief versus practice distinction and also argued

that because the use of peyote was illegal it could

be banned in the interest of regulating the use of

drugs in society. Despite the fact that the Court

has argued in Cantwell and Barnette that free

exercise of religion is a fundamental right that

may not be subject to the “vicissitudes of political

controversy,” Justice Antonin Gregory Scalia

and a majority of the Court seem willing to permit

elections and majoritarian politics to determine

the scope of protection that free exercise of reli-

gion is entitled to.

In contrast to free exercise, the establishment

clause imposes a different duty on the govern-

ment: not to proscribe religion or religious beliefs.

The question arises, What does it mean to estab-

lish a religion? Is it adopting an ofﬁ cial national

religion? Does it mean no reference to religion or

God at all, including Christmas, Easter, or Hanuk-

kah displays? Does it ban prayer in public school,

including silent prayer? These are all good ques-

tions, and it is not easy to decide what the estab-

lishment clause means.

To understand this clause, legal scholars and

judges often adopt either a “high wall” or “accom-

modationist” stance. The high-wall position can

trace its roots to a January 1, 1802, speech by

Thomas Jefferson in which he argued that the

establishment clause meant the building of a “wall

of separation between Church and State.” The

reason for the wall is both to prevent churches

from using the government to oppress others and

to prevent the state from regulating or interfering

with any religion. Conversely, the accommoda-

tionist position reminds us that we are a religious

nation with a long history of church and state

interaction. This interaction occurs in the form

of public proclamations, Thanksgiving, and in

respecting the free exercise of individuals to prac-

tice their religions. For the accommodationist,

maintaining a high wall of separation might move

the state beyond simply being neutral toward reli-

gion and instead actually oppressing religious lib-

erty. Determining which of these understandings

of the establishment clause is correct is difﬁ cult,

and the Supreme Court itself has often changed

its mind and adopted conflicting views of what

this clause prohibits.

The Supreme Court has sought to create a rule

to determine when the establishment clause has

been violated. The Supreme Court formulated this

rule in L

EMON V. KURTZMAN, 403 U.S. 602 (1971). In

this case, Rhode Island and Pennsylvania sought

to expend state funds either to reimburse private

schools for the cost of teachers’ salaries, textbooks,

and instructional materials in secular materials or

to supplement directly these teacher’s salaries.

The Court answered no in both cases. This case

sets down a three-part test to clarify the establish-

ment question:

Every analysis in this area must begin with con-

sideration of the cumulative criteria developed

by the Court over many years. Three such tests

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may be gleaned from our cases. First, the statute

must have a secular legislative purpose; second,

its principal or primary effect must be one that

neither advances nor inhibits religion, ﬁ nally, the

statute must not foster “an excessive government

entanglement with religion.”

The Lemon test, as this three-part test has

come to be known, requires a statute to satisfy all

three prongs of the test before it will be upheld

and deemed not a violation of the establishment

clause. Thus, a statute must have a secular pur-

pose, neither advance nor inhibit religion, nor

foster excessive entanglements with religion.

While the Lemon test may sound simple, since

its formulation in 1971, the debate to determine

the meaning of the establishment clause has

continued.

While the Lemon test has recently been used to

help clarify establishment clause violations, many

cases in the 1950s and 1960s were important in

formulating the current law on the establishment

clause. In these cases, the Supreme Court struck

down either Bible readings, posting of the Ten

Commandments, or recitation of a teacher-led

prayer to start the public school day. For example,

in E

NGEL V. VITALE, 370 U.S. 421 (1962), the issue

was whether the New Hyde Board of Education

could, upon the recommendation of the New

York State Board of Regents, begin each public

school day by having a “nonsectarian” prayer read

in class? Additionally, in Abington v. Schempp,

the question was whether the state of Pennsylva-

nia may require 10 verses of the Bible to be read

at the start of every school day and allow any

child who objected to be exempt from the reading

upon written parental request? In both cases, the

Court reached the same conclusion, that these

activities were clearly violations of the establish-

ment clause.

The particular concern of permitting prayer

in school involves the question of coercion. Spe-

ciﬁ cally, even though many of the programs for

prayer allowed students not to participate, some

on the Court felt that it would be very hard for

children to go against their teacher or peers and

not pray. In effect, they would feel forced to pray

or take part in religious activities that they might

not support.

When decided, Engel v. Vitale and these other

cases were quite controversial, and they remain so

today. Many people view these decisions as “tak-

ing God out of the schools,” as hostility to religion,

or as the cause of the undermining of school dis-

cipline or the loss of morality in society. Hence,

there remains signiﬁ cant demand in some school

districts to reinstate prayer or some type of reli-

gious education into public schools. Two contro-

versial decisions worth noting are W

ALLACE V.

JAFFREE, 472 U.S. 38 (1985), and LEE V. WEISMAN,

505 U.S. 577 (1992). In both cases, not only was

the Court asked to revisit its earlier decisions on

school prayer, but it was also asked to rethink

the Lemon test.

At issue in the ﬁ rst case was an Alabama law

that started each day with a one-minute moment

of silence. This moment could be used for prayer,

silent meditation, or whatever the students pre-

ferred. For some, this moment of silence lacked the

coerciveness of a read prayer that required active

participation. During this meditation minute, no

one would know if one was praying or doing some-

thing else. Despite this claim, a divided Supreme

Court struck down the prayer. Important to the

reasoning of the majority was reference to the

records of the Alabama legislature indicating that

the sponsor of this law authorizing the moment of

silence saw this bill as a ﬁ rst step toward returning

prayer to public schools.

In citing this legislative intent and history, the

Court argued that the law failed the Lemon test.

First, the law clearly was not secular in its intent

but had a religious purpose. Second, the law was

not neutral and instead its aim was to support

religion.

Conversely, Justice William Hubbs

Rehnquist in dissent saw this silent moment

as lacking the coerciveness of the prayers struck

down in Engel v. Vitale. Rehnquist also used the

occasion to argue that past establishment clause

rulings were erratic, that the application of the

Lemon test was inconsistent, and that many of

these rulings supported some type of state-church

interaction in the schools.

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In Lee v. Weisman, the issue was the deliv-

ery of a state-written nondenominational prayer

at public junior and high school graduation cer-

emonies. More specifically, a rabbi opened up

the ceremony with an invocation that referred to

God. There was also a benediction delivered by

the rabbi that referred to God. This case tested

the applicability of school prayer cases to school

activities that take place outside of the normal

school day. Moreover, given what appeared to be

a more conservative Court that seemed sympa-

thetic to religion, there was hope that a majority

of the justices would seek to change or abandon

the Lemon test.

However, the Court struck down the prayer,

although the justices were badly divided. Justice

Anthony M. Kennedy, who had previously crit-

icized the Lemon test, wrote for the majority and

argued that students really were not free to excuse

themselves from their graduation ceremony and

that they were in fact being forced to listen to

the prayer. Additionally, the fact that the school

had helped compose the prayer was also upset-

ting to him and the majority. He noted that this

type of state composition of a religious message is

what the establishment clause was meant to ban.

Finally, Justice Kennedy rejected a rethinking of

the Lemon test, stating that there was no need to

review it at this time.

In dissent, four justices argued that the bene-

diction and invocation were part of a long-stand-

ing practice in American history and that they had

in many ways lost their religious nature. Instead,

they were part of the rites of passage for gradua-

tion. Moreover, Justices Scalia, Rehnquist, Byron

White, and Clarence Thomas argued that the

Lemon test had problems and that it needed to be

rethought or rejected.

Both Wallace and Lee appear to indicate that

almost all types of prayer are banned from school.

However, with a divided Court, a change in a few

justices might change some things. Moreover,

these opinions do not indicate whether at bacca-

laureate ceremonies prayers are unconstitutional.

Would student-composed and -recited prayers at

graduation be permitted? Would prayers by play-

ers before a football game be unconstitutional?

Perhaps yes, but where is the element of coer-

cion here? Are students really required to play

football, attend sporting events, or assist in writ-

ing a prayer? Additionally, the Court in Marsh v.

Chambers, 463 U.S. 783 (1983), itself has upheld

prayer before the start of Congress each day and

has ruled that this was not coercive and unconsti-

tutional. What is the difference between allowing

that prayer and what might be a moment of silence

during graduation or before a sports event?

Another area of concern for the establishment

clause is with public display of holiday or reli-

gious symbols. In L

YNCH V. DONNELLY, 465 U.S.

668 (1984), the question was whether the city of

Pawtucket, Rhode Island, in cooperation with

its downtown merchants, could erect a Christ-

mas display in a privately owned park adjacent

to City Hall when that display included, among

other things, a Santa Claus and a crèche or Nativ-

ity scene that was owned by the city. Writing for

a majority of the Court, Chief Justice Warren

E. Burger held that this display was permissible

and that it was not a violation of the establish-

ment clause. Burger rejected the high wall theory

of the establishment clause and argued instead

that there was a long history of governmental

accommodation with religion in America. After

indicating that neither U.S. history nor the intent

of the Founding Fathers seemed hostile to some

church-state interaction, Burger proceeded to use

the Lemon test to indicate that the establishment

clause would not preclude the type of display

found in Pawtucket.

In applying the three-part Lemon test, Chief

Justice Burger failed to ﬁ nd an excessive entangle-

ment. He observed that the cost of the crèche and

its maintenance were small and that the crèche

was displayed next to other items, such as rein-

deer, which were not religious but more symbolic

of the secular holiday mood of goodwill and cheer.

Because of this context of several different sym-

bols, Burger concluded for the Court: “We are

satisﬁ ed that the City has a secular purpose for

including the crèche, that the City has not imper-

missibly advanced religion, and that including the

crèche does not create excessive entanglement

between religion and government.”

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In dissent, Justice William J. Brennan, Jr.,

and the minority argued that in fact an exces-

sive entanglement had occurred and that both

the ﬁ rst and third prongs of the Lemon test had

been violated. Brennan’s argument was that while

perhaps up to this point there was no excessive

entanglement between Pawtucket or other cit-

ies and churches, this decision would potentially

lead to conﬂ icts in the future. This is exactly what

happened in Pittsburgh, Pennsylvania, a few years

later in Allegheny v. ACLU, 492 U.S. 573 (1989).

The city of Pittsburgh sought to erect a Christ-

mas crèche on the grand staircase of the Allegh-

eny County courthouse and place a menorah

outside the city-county building, next to a Christ-

mas tree and a sign saluting Lady Liberty. Four

justices, Kennedy, White, Rehnquist, and John

Paul Stevens would have upheld both displays

as constitutional; three justices, Thurgood Mar-

shall, Stevens, and Brennan, would have struck

down both; Justices Sandra Day O’Connor and

Harry A. Blackmun struck down the ﬁ rst display

but permitted the menorah. The result was that

the display of the crèche, even though it was next

to other displays including a Santa Claus, was

found to violate the establishment clause because

it was a state endorsement of religion. However,

the display of the menorah was found to be con-

stitutional because, for the Court, the “menorah’s

message is not exclusively religious. The menorah

is the primary visual symbol for a holiday that, like

Christmas, has both religious and secular dimen-

sions.” Hence, while the crèche in Pawtucket was

not religious, in Pittsburgh it was, despite the fact

that the display of the menorah was not. In reach-

ing all three of these holdings, the Court sought

to use the same Lemon test to interpret the same

establishment clause. Despite what would appear

to be an easy task, nine justices could not agree on

the correct result dictated by past rulings and the

Constitution, and it is not easy to determine who,

if any, of the justices was correct.

A ﬁ nal establishment clause issue occurs where

particular religious views might endorse a speciﬁ c

set of laws or public policies. For example, reli-

gious views on the sabbath were once inﬂ uential

in the passage of “blue laws.” Blue laws prevented

certain types of businesses from being open on

Sunday. In two cases, Gallagher v. Crown Kosher

Super Market, 366 U.S. 616 (1961), and Braunfeld

v. Brown, 366 U.S. 599 (1961), Orthodox Jewish

merchants objected to these laws. The basis of

their objection was that since they were already

closed on Saturday, the Jewish sabbath, the Sun-

day closing law forced them to close an additional

day, and it hurt their businesses. The Supreme

Court rejected their claims, indicating that there

was an independent secular rule for the Sunday

closings despite the religious origin of these laws

and the impact they had on Orthodox Jews.

The prohibition on the abridgment of free

speech raises the most questions. For example,

does it prevent the government from passing any

laws regulating or prohibiting speech? A literal or

absolutist reading of the text of the First Amend-

ment would seem to suggest that. However, there

are numerous exceptions the courts have made to

this. On one level, criminal laws making extortion

or blackmail illegal regulate speech but nonethe-

less have been upheld because they are not the

kind of speech the First Amendment was meant

to protect.

There are competing philosophies regarding

what the free speech clause is supposed to protect.

One school of thought, as articulated by Alexander

Meiklejohn, argues that the First Amendment’s

core purpose is to protect the political speech

of individuals. Steve Shiffrin believes that it is to

protect the right to criticize, while Thomas Emer-

son sees its purpose as to promote self-expression.

Lee Bollinger argues that the First Amendment

seeks to help promote toleration. These competing

perspectives on the free speech clause are more

than academic; they affect what types of speech or

communications will receive protection. In effect,

they will decide what counts as speech for the

purposes of the First Amendment.

Over time, the Supreme Court has examined

numerous types of communication and found

them to be speech. These include flag burning

EXAS V. JOHNSON, 491 U.S. 397 [1987]), cross

burning (R.A.V. V. ST. PAUL, 505 U.S. 377 [1992]),

the use of offensive language in a court (C

OHEN

V. CALIFORNIA, 283 U.S. 359 [1971]), and sexually

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explicit materials (MILLER V. CALIFORNIA, 413 U.S.

15 [1973]). Conversely, the Court has stated that

libel is not speech (N

EW YORK TIMES V. SULLIVAN,

376 U.S. 254 [1964]) and that obscene materials

(Miller v. California) are also exempt from First

Amendment protection. There is then a category

of communications that may be speech but none-

theless either entitled to some or very little First

Amendment protection. For example, nude but

nonobscene dancing is expressive, but it does not

receive much constitutional protection (Barnes v.

Glen Theatre, 501 U.S. 560 [1991]), and money is

not speech, but it may receive some First Amend-

ment protections in the context of political contri-

butions and expenditures (B

UCKLEY V. VALEO, 424

U.S. 1 [1976]).

The test for when something is or is not pro-

tected by the First Amendment has evolved over

time. Initially, William Blackstone in his book

Commentaries on the Laws of England, which

was inﬂ uential in early American law, argued that

seditious libel (criticism of the government)

was the goal of free speech. The 1735 New York

acquittal of publisher Peter Zenger in colonial

America on charges of seditious libel against the

British government reafﬁ rmed this notion of what

free speech protected.

Modern notions regarding the scope of the

protections of the First Amendment free speech

clause begin in S

CHENCK V. UNITED STATES, 249

U.S. 47 (1919). Here, in upholding the conviction

of two individuals accused of violating the 1917

Espionage Act during World War I by seeking

to disrupt military recruitment, Justice Oliver

Wendell Holmes, Jr., stated that speech was

no longer protected under the First Amendment

when it posed a “clear and present danger” that it

would bring about the evils Congress intended to

prevent.

In Masses Publishing Co. v. Patten, 244 Fed.

535 (D.NY) (1917), Judge Learned Hand adopted

the “incitement” test to decide on the scope of

free speech, arguing that if the speech stops just

short of inciting or urging others to break the law,

it is protected under the First Amendment. The

incitement and clear and present danger

tests became encapsulated into the “imminent

lawless” test in B

RANDENBURG V. OHIO, 395 U.S 444

(1969), when the Court stated that speech is pro-

tected until such time as it advocates imminent

lawlessness or violence that is actually imminent.

In effect, mere advocacy of ideas or beliefs is pro-

tected by the First Amendment, regardless, it

appears, of what those ideas advocate.

Another issue affecting interpretations of the

free speech clause is whom and what it protects.

Historically, the First Amendment only protected

individual speech. However, the Supreme Court

has also extended free speech protections to, for

example, corporations, labor unions, and political

parties, in some cases ruling that commercial

speech or advertising is entitled to some First

Amendment protection. Finally, in interpreting

the First Amendment, the Supreme Court has

had to address issues of how to regulate speech

on public property, when it involves government

employees, when speech and nonspeech activity

are intertwined, and in the context of new tech-

nologies such as the World Wide Web and the

Internet. In all these areas, complex rules have

been fashioned to interpret what the First Amend-

ment prohibits.

Freedom of the press is a fourth protection

found in the First Amendment. The trial of Peter

Zenger seemed to establish a broad right to use the

press to criticize the government. In fact, during

the Revolutionary War, pamphlets and the presses

were routinely used to criticize the British, and

the battle over ratiﬁ cation of the 1787 Constitu-

tion was fought in part in the newspapers. Three

cases deﬁ ne the current framework for freedom of

press under the First Amendment. In N

EAR V. MIN-

NESOTA, 283 U.S. 697 (1931), the Supreme Court

struck down as unconstitutional a Minnesota law

that made it illegal to publish “obscene, lewd, and

lascivious” or “malicious” materials. The law gave a

judge the power to shut down a paper that violated

or attempted to violate this law. The Court ruled

that this law constituted prior restraint, which was

prohibited under the First Amendment.

In New York Times v. Sullivan, the Court

voided an Alabama law and verdict that found

a newspaper had committed libel in publish-

ing material that contained some inaccuracies in

First Amendment 279

xviii+446_EofUSConsti-v1.indd 279 3/12/09 3:05:05 PM

its criticism of a public ofﬁ cial. The Court ruled

that unless one demonstrated actual malice, the

criticism of a public ofﬁ cial would not be found

to be libelous. New York Times was heralded as

a monumental defense of freedom of press, vin-

dicating constitutionally what the trial of Zenger

had begun. Finally, in New York Times v. United

States, 403 U.S. 713 (1971), the Supreme Court

upheld the decision of a paper to publish the Pen-

tagon Papers, classified information critical of

the United States’s involvement in Vietnam. As in

Near, the Court ruled against censorship.

Freedom of the press addresses other issues,

too. For example, are reporters required to

divulge sources in their stories when subpoenaed?

In Branzburg v. Hayes, 408 U.S. 665 (1972), the

Supreme Court rejected claims that the First

Amendment contained a shield law protecting

reporters. However, many states do have shield

laws, and the federal government has debated

enacting one. In addition, the First Amendment

seems to treat print, radio, television, and the

Internet differently. Because the public owns the

television and radio airwaves, the Court has been

more willing to allow some regulation of speech,

especially to prevent minors from viewing sexually

explicit materials, in particular during prime and

day time and on the major networks. Different

rules have been allowed for cable. However, the

Court has given more protection for print materi-

als, and increasingly it seems to be rejecting con-

tent regulation on the Internet.

The right to a peaceful assembly is a ﬁ fth pro-

tection found in the First Amendment. In NAACP

v. Alabama, 357 U.S. 449 (1959), a unanimous

Supreme Court ruled that Alabama’s request of a

civil rights group to make its membership list

public infringed on its right of freedom of asso-

ciation. In Roberts v. United States Jaycees, 468

U.S. 609 (1984), the Court rejected freedom of

association claims on the part of the Jaycees to

refuse to admit women to their organization as

members. However, in B

OY SCOUTS V. DALE, 530

U.S. 640 (2000), and in H

URLEY V. IRISH-AMERICAN

GAY, LESBIAN & BISEXUAL GROUP OF BOSTON, 515

U.S. 557 (1995), the Court upheld exclusion of

homosexuals from membership in the Boy Scouts

or from marching in a St. Patrick’s Day parade.

In both cases, the Court ruled that freedom of

association also entailed the right not to associate

with others. In other contexts, the right of free-

dom of association has been invoked by political

parties to restrict who can participate in their

primaries.

Finally, the right to petition the government

is often ignored in litigation and has often been

examined under the right of assembly and asso-

ciation decisions as in B

UCKLEY V. AMERICAN CON-

STITUTIONAL LAW FOUNDATION, 525 U.S. 182 (1999),

where the Court struck down some requirements

a state had imposed on individuals hired to gather

signatures for ballot propositions. The right to

petition the government also includes the right of

individuals and groups to hire lobbyists to advo-

cate on their behalf.

Overall, the First Amendment contains numer-

ous protections for expressive freedoms that are

critical both to self-identity and to the functioning

of a democracy. The amendment touches issues

ranging from music and art censorship to prayer

in school and political demonstrations. Given this

breadth, it is not surprising that there are perhaps

more controversy and litigation surrounding it

than any other amendment.

For more information: Bollinger, Lee C. The

Tolerant Society: Freedom of Speech and Extrem-

ist Speech in America. New York: Oxford Univer-

sity Press, 1986; Emerson, Thomas I. Toward a

General Theory of the First Amendment. New

York: Random House, 1966; Harry Kalven, Jr. A

Worthy Tradition: Freedom of Speech in Amer-

ica. New York: Harper & Row, 1988; Meiklejohn,

Alexander. Free Speech and its Relation to Self-

Government. New York: Harper & Row, 1948;

Shiffrin, Steven. The First Amendment, Democ-

racy, and Romance. Cambridge, Mass.: Harvard

University Press, 1990.

—David Schultz

ﬂ ag burning amendment

The ﬂ ag burning amendment refers to efforts to

overturn a Supreme Court decision that made

280 ﬂ ag burning amendment

xviii+446_EofUSConsti-v1.indd 280 3/12/09 3:05:05 PM

the act of burning the American ﬂ ag a protected

First Amendment expression.

In June 1989, the U.S. Supreme Court issued

a controversial decision in the case T

EXAS V. JOHN-

SON, 491 U.S. 397. In that decision, it held a man

convicted under a Texas law for burning an Amer-

ican ﬂ ag at the 1984 Republican Convention was

engaged in protected speech and reversed his con-

viction. The decision set off a ﬁ restorm of protest

from many quarters and led several groups and

politicians to call for an amendment to the Consti-

tution to protect the ﬂ ag from desecration.

Immediately after the decision was handed

down by the Supreme Court, individuals began

to call for a constitutional amendment to protect

the ﬂ ag. Senator George Mitchell said: “I do not

believe that Americans have to see the ﬂ ag, that

symbolizes their freedom to speak, devalued and

cheapened in the cause of preserving that free-

dom.” On June 20, 1989, President George H. W.

Bush also called for a constitutional amendment

to protect the ﬂ ag, stating, “But before we accept

dishonor to our ﬂ ag, we must ask ourselves how

many have died, following the order to ‘Save the

Colors!’ ”

The House of Representatives held hear-

ings on the ﬂ ag amendment in July. During the

hearings, the committee heard from veterans

on both sides of the question. Pro-amendment

speakers emphasized the patriotic appeal of the

ﬂ ag as a symbol of national pride and honor. Anti-

amendment speakers emphasized the flag as a

symbol of freedom and argued that the amend-

ment would undermine constitutional guarantees

of freedom of speech.

In September 1989, the Senate subcommit-

tee voted to recommend a statute protecting the

flag but rejected a constitutional amendment.

Protesters burn an American ﬂ ag in Washington, D.C., at the inauguration of President George W. Bush.

(Levine/Getty Images)

ﬂ ag burning amendment 281

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