First Amendment

Amendment to the U.S. Constitution and part of the Bill of Rights that guarantees freedom of speech, freedom of the press, religious liberty, separation of church and state, and the rights to peaceably assemble and to petition the government for redress of grievances.

Although the First Amendment, together with the other nine amendments known as the Bill of Rights, became part of the U.S. Constitution on December 15, 1791, the Supreme Court took little note of it until the beginning of the twentieth century. This was not for lack of federal laws impinging on free speech, from the Sedition Act of 1798 and the Comstock Act of 1873 to the Alien Immigration Act of 1930 and a wide variety of postal regulations. However, the Court never found that any of these laws violated the First Amendment. Indeed, in 1907 the Court upheld the conviction of an editor for contempt, rejecting a defense based on the First Amendment on the grounds that it only prohibited prior restraint.

It was inevitable that the Court and the First Amendment would travel together through U.S. constitutional law, frequently crossing paths, sometimes diverging, often forced by circumstances to retrace the same ground. Each clause of the First Amendment invites, indeed demands, judicial interpretation.

Freedom of Speech

Speech, freedom ofBeginning at the end of World War I, the Court tackled the task of devising a series of tests to determine whether particular speech was constitutionally protected. The Court could not merely cite the general language of the First Amendment; it had to apply those opaque terms to the real world of real cases.First Amendment speech tests

The first test was articulated by Justice Oliver Wendell HolmesHolmes, Oliver Wendell in 1919 in a series of cases challenging the convictions of antiwar activists under the Espionage Act of 1917Espionage Act of 1917. The clear and present danger testClear and present danger test looked at whether the speech posed a real and immediate risk of a substantive evil that Congress had a right to prevent. Holmes captured the test in a powerful, albeit often misquoted, metaphor that persists to this day: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Later in 1919, Holmes and his ally, Justice Louis D. Brandeis, dissented in Abrams v. United States[case]Abrams v. United States[Abrams v. United States], arguing for greater constitutional protection for controversial or even subversive speech. The majority of the Court continued to use the clear and present danger test to uphold the punishment of such speech.

Six years later, the majority of the Court tightened the noose on free speech by focusing on whether the expression had a bad tendencyBad tendency test. Over bitter dissent from Holmes and Brandeis, the Court upheld a conviction under the New York State Criminal Anarchy Act, stating that a “single revolutionary spark may kindle a fire,” and therefore the state may “suppress the threatened danger in its incipiency.”

In 1951 the Court used a slightly reformulated test to uphold the convictions of eleven members of the CommunistCommunism Party under the Smith ActSmith Act (1940). Chief Justice Fred M. Vinson, writing for the Court, asked “whether the gravity of the ’evil’ discounted by its improbability” would justify government limits on speech.

In 1964 Justice William J. Brennan, Jr., introduced a test that was far more protective of free speech. In the landmark case of New York Times Co. v. Sullivan[case]New York Times Co. v. Sullivan[New York Times Co. v. Sullivan], the Court held that false criticism of public officials was constitutionally protected unless it was made with knowledge that it was false or in reckless disregard of the truth. Instead of tilting the constitutional balance in favor of the government, the Sullivan test gave the advantage to the speaker.

The Holmes-Brandeis view in favor of more robust protection for free speech was finally vindicated in 1967 in Brandenburg v. Ohio[case]Brandenburg v. Ohio[Brandenburg v. Ohio], in which the Court declared that mere advocacy of the use of force or violation of the law could no longer be punished unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”

The Religion Clauses

As in the field of free speech, the perplexing issues surrounding freedom of religion have required the Court to fashion several constitutional tests to ensure the free exercise of religion,Religion, freedom ofReligion, establishment of without establishing a state-sponsored religion. As the twentieth century ushered in an era of secularization, the dominance of religion in public life began to be seen as inconsistent with the First Amendment’s promise of neutrality when it came to religious faith. Religion was seen as a part of the private sphere of life, leaving the public sphere, including most visibly public schools, free of religious symbols, let alone indoctrination.

In several decisions spanning more than twenty years, from Everson v. Board of Education of Ewing Township in 1947 to Lemon v. Kurtzman in 1971, the Court developed the test that any governmental action touching on religion would survive invalidation under the establishment clause only if it had a secular purpose that neither endorsed nor disapproved of religion, had an effect that neither advanced nor inhibited religion, and avoided creating a relationship between religion and government that entangled either in the internal affairs of the other. The Lemon testLemon test[Lemon test] has been criticized by all ends of the political and constitutional spectrum, but it has provided lower courts and legislators with some level of guidance in dealing with such thorny issues as prayer in schools and financial aid to religious institutions.

Meanwhile, the Court had to interpret the free exercise clause of the First Amendment in numerous cases in which believers claimed a right to ignore laws that required them to perform an act that violated their religious beliefs or that prohibited them from performing an act that was required by their religious beliefs.

Beginning in 1879 in Reynolds v. United States[case]Reynolds v. United States[Reynolds v. United States] and for almost a hundred years, the Court dealt with most free exercise cases by upholding laws that punished actions but struck down laws that punished beliefs. However, the easy dichotomy began to break down when, in Sherbert v. Verner[case]Sherbert v. Verner[Sherbert v. Verner] (1963), the Court ordered a state to pay unemployment benefits to a Seventh-Day Adventist even though she would not make herself available for work on Saturday (her Sabbath). In 1972, in Wisconsin v. Yoder[case]Wisconsin v. Yoder[Wisconsin v. Yoder], the Court held that the Amish were not required to send their children to public school past the eighth grade in violation of their religious beliefs.

By the 1980’s, the pendulum had begun to swing against religious liberty as the Court issued a succession of decisions ruling against a Native American who sought to prevent the government from assigning his daughter a social security number, an Orthodox Jew who sought to wear a yarmulke in violation of Air Force uniform regulations, a Native American tribe that sought to prevent construction of a federal highway that would interfere with their worshiping, and two Native Americans who sought unemployment compensation after they were fired from their jobs for smoking peyote as part of tribal religious rituals.

The Court has found the religion clauses of the First Amendment fraught with interpretative dangers. Inevitably, the Court is criticized either for going too far in promoting religion or for exhibiting hostility toward religion. That alone may be evidence that the Court is doing its job as conceived by the Founders.

The Right to Peaceably Assemble

Although freedom of speech and freedom to worship protect highly personal rights, the First Amendment’s guarantee of the right “of the people peaceably to assemble,” protects the right of association.Assembly and association, freedom of These are the rights of the people as a community to join together to achieve certain political, social, economic, artistic, educational, or other goals.

For the Court, interpreting the right to assemble has been even more difficult than construing other aspects of the First Amendment, because by its very nature, assembly involves both speech and conduct. At first blush, the First Amendment has nothing to do with conduct. However, when the Court is confronted with cases involving public demonstrations, protests, parades, and picketing, it is apparent that these activities are intended to send a message and communicating messages is clearly protected by the First Amendment.

However, blocking traffic, littering the streets, or physically obstructing others from going about their business is not protected by the First Amendment. Consequently, when it comes to freedom of assembly, the Court has used a balancing test, seeking first to determine whether the law regulating assembly is in fact a ruse to suppress a particular viewpoint, and if not, whether the law serves a compelling state interest unrelated to the suppression of free speech.

For example, in 1940 in Thornhill v. Alabama[case]Thornhill v. Alabama[Thornhill v. Alabama], the Court struck down a state law that prohibited all picketing. Although the First Amendment does not afford an absolute right to picket, the Court overturned the statute because instead of regulating specific aspects of labor demonstrations, it prohibited “every practicable method whereby the facts of a labor dispute may be publicized.”

Closely aligned with freedom of assembly is freedom of association or the right of the people to form and join organizations in order to educate themselves and influence public policy on important issues of the day. Even during the hysteria of the Cold War in the 1950’s, the Court held in Yates v. United States[case]Yates v. United States[Yates v. United States] (1957) that when membership in the Communist Party involved nothing more than the advocacy or teaching of the abstract doctrine of the forcible overthrow of the government (as contrasted with the advocacy or teaching of direct action to achieve that end) convictions under the Smith Act were unconstitutional.

In 1958, in National Association for the Advancement of Colored People v. Alabama[case]National Association for the Advancement of Colored People v. Alabama[National Association for the Advancement of Colored People v. Alabama], the Court found that the forced disclosure of an organization’s membership list violated the members’ rights to pursue their lawful interests and to freely associate with like-minded persons. Although freedom of association is not expressly set forth anywhere in the Constitution, the Court nevertheless found freedom of association to be an integral part of the First Amendment.

The Right to Petition the Government

The least controversial (and least litigated) right in the First Amendment is the right “to petition the government for redress of grievances.” Aside from a doomed attempt in 1836 by the House of Representatives to impose a gag rule against the receipt of petitions from abolitionists who opposed slavery, Congress has not had the temerity to even attempt to restrict this quintessential right to write to your Congressperson, thereby sparing the Court the task of striking down such legislation.

Further Reading

  • Steven H. Shiffrin and Jesse H. Choper’s The First Amendment: Cases, Comments, Questions (St. Paul, Minn.: West Publishing, 1996) provides a basic introduction to the First Amendment. Henry Julian Abraham and Barbara A. Perry’s Freedom and the Court: Civil Rights and Liberties in the United States (8th ed. Lawrence: University Press of Kansas, 2003) is a comprehensive overview of the Supreme Court’s approach to civil rights and liberties that includes an excellent chapter on the Court’s First Amendment jurisprudence. The First Amendment: The Legacy of George Mason (London: Associated University Presses, 1985), edited by T. Daniel Shumate, focuses on the origin and meaning of the amendment. Louis E. Ingelhart’s Press and Speech Freedoms in the World, from Antiquity Until 1998: A Chronology (Westport, Conn.: Greenwood Press, 1998) covers the concept of freedom of speech and press from ancient times until the modern period, and Margaret A. Blanchard’s Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992) covers the concept from the beginning to the end of the twentieth century. The First Amendment and the freedoms of association and assembly are examined in Freedom of Association (Princeton, N.J.: Princeton University Press, 1998), edited by Amy Gutmann, and Paul L. Murphy’s Rights of Assembly, Petition, Arms, and Just Compensation (New York: Garland, 1990). The First Amendment and religion are examined in Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998), The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Bill of Rights, edited by Thomas Tandy Lewis (2 vols. Pasadena, Calif.: Salem Press, 2002), is a compact reference work on the Bill of Rights that devotes nearly half its space to the First Amendment.

Assembly and association, freedom of

Bad tendency test

Brandeis, Louis D.

Brennan, William J., Jr.


Clear and present danger test


First Amendment absolutism

First Amendment balancing

First Amendment speech tests

Holmes, Oliver Wendell

Religion, establishment of

Religion, freedom of