First Amendment absolutism Summary

  • Last updated on November 11, 2022

Position that protections given by the First Amendment to the U.S. Constitution are absolute, not subject to qualification or abridgement in any way.

Among the Supreme Court justices who could be called First Amendment absolutists is Justice Hugo L. BlackBlack, Hugo L.. He argued that when the First Amendment said “Congress shall make no law” it meant that Congress should make absolutely no laws abridging First Amendment rights. Almost all other justices have taken that with a grain of salt, opining that “no law” meant something other than absolutely no laws.

Justice William O. DouglasDouglas, William O. joined Black in most of his absolutist decisions, and he wrote that the government should take an enabling position regarding First Amendment issues, especially freedom of the press, creating opportunities for citizens to publish opinions. However, the Court majority never took an absolutist approach to First Amendment issues.

The First Amendment can be separated into three divisions: the religion clauses (establishment and freedom), the speech and press clauses, and the clauses guaranteeing peaceable assembly and the right to petition. Most of the Court’s First Amendment decisions relate to speech and press, and a substantial number of cases relate to religion. Only a handful are about assembly and petition rights.

Speech and Press

The Court clearly stated that no absolute freedom of speechSpeech, freedom of or the pressPress, freedom of exists. It found in Cohen v. California[case]Cohen v. California[Cohen v. California] (1971) that there is no absolute freedom to speak wherever or whenever one chooses and in Dennis v. United States[case]Dennis v. United States[Dennis v. United States](1951) that the “societal value of speech must on occasion be subordinated to other values and considerations.” It should be noted that Dennis, a case involving the trial of people charged with preaching the violent overthrow of the government by the CommunistCommunism Party, is not unanimously considered good law today. Neither is Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919), a case involving people convicted of distributing leaflets urging draftees not to bear arms; this violated the Espionage Act of 1917. Their conviction was unanimously upheld by the Court. In his opinion, Justice Oliver Wendell Holmes wrote that freedom of speech does not give one the right to shout a false “fire” warning in a crowded theater. Holmes’s words served as the foundation of the clear and present danger test. The Court used the clear and present danger test as well as a balancing test (which examines the gravity of the danger to see if it justifies suppressing freedom of speech) in numerous decisions to determine when First Amendment freedom of speech and press rights could be abridged.

When Justice Joseph Story, a friend and colleague of Chief Justice John Marshall, wrote his commentaries on the law, he argued that the government has a right to protect its survival, and the Court upheld that line of reasoning in American Communications Association v. Douds[case]American Communications Association v. Douds[American Communications Association v. Douds] (1950). The free speech and free press clauses must be balanced against compelling public interests, the Court ruled, and it appears that every effort to challenge that ruling has been denied certiorari. The Court ruled that regulation of speech and the press must not be content-based, must bear a reasonable relationship to a significant government interest, and must allow for other channels of communication.

Religion

The Court comes closest to the absolutist position when it rules on religionReligion, freedom of cases. The religionReligion, establishment of clauses are absolute “as far as they go,” the Court ruled, but they do not require complete separation of church and state. What they do require is that the government avoid regulating religious beliefs, establishing a state religion, and showing any preferences among religions or between religion and irreligion. When religious belief is translated into action, the state can intervene to regulate or prevent the action. Any legislation, the Court ruled in Larkin v. Grendel’s Den[case]Larkin v. Grendel’s Den[Larkin v. Grendel’s Den] (1982), must meet three rules: First, it must meet a secular legislative purpose; second, it must neither advance nor inhibit religion; and third, it must not entangle the government with religion.

Assembly and Association

Neither the right to assembleAssembly and association, freedom of nor that to associate was judged to be absolute. For example, in Cox v. New Hampshire[case]Cox v. New Hampshire[Cox v. New Hampshire] (1941), the Court upheld a license requirement for public parades and processions. In various cases, it endeavored to establish where and how people could assemble. The Court also examined association issues, trying to determine whether membership in certain clubs or organizations could be denied to members of various groups and whether those institutions were public or private.

Further Reading
  • Alderman, Ellen, and Caroline Kennedy. In Our Defense: The Bill of Rights in Action. New York: Morrow, 1991.
  • Black, Hugo LaFayette. One Man’s Stand for Freedom: Mr. Justice Black and the Bill of Rights. New York: Alfred A. Knopf, 1971.
  • Dennis, Everett, Donald M. Gillmore, and David L. Grey, eds. Justice Hugo Black and the First Amendment: “’No law’ means no law.” Ames: Iowa State University Press, 1978.
  • Duran, James C. Justice William O. Douglas. Boston: Twayne, 1981.
  • Fellman, David. The Constitutional Rights of Association. Chicago: University of Chicago Press, 1963.
  • Hocking, William Ernest. Freedom of the Press: A Framework of Principle. New York: Da Capo Press, 1972.
  • Levy, Beth, and Denise M. Bonilla. The Power of the Press. Bronx, N.Y.: H. W. Wilson, 1999.
  • Miller, William Lee. The First Liberty: Religion and the American Republic. New York: Alfred A. Knopf, 1986.
  • St. John, Jeffrey. Forge of Union, Anvil of Liberty: A Correspondent’s Report on the First Federal Elections, the First Federal Congress, and the Bill of Rights. Ottawa, Ill.: Jameson Books, 1992.
  • Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, 1992.

Assembly and association, freedom of

Black, Hugo L.

Douglas, William O.

First Amendment

First Amendment balancing

Petition, right of

Religion, establishment of

Religion, freedom of

Speech and press, freedom of

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