First Amendment, amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads, Bill of Rights Bill of Rights of the United States Constitution.
The clauses of the amendment are often called the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.
History: Fact or Fiction? Get hooked on history as this quiz sorts out the past. Find out who really invented movable type, who Winston Churchill called "Mum," and when the first sonic boom was heard. The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts. In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people “liberty” without “due process.” Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the ’40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems. The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employee’s speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites. Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment. The freedoms of speech, of the press, of assembly, and to petition—discussed here together as “freedom of expression”—broadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on people’s speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception (see below Permissible restrictions on expression). The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality, and social issues as well as art and even personal gossip. Freedom of the press confirms that the government may not restrict mass communication. It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have. Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.
Tabasco sauce was first distributed in discarded cologne bottles; the narrow opening on top was perfect for a liquid meant to be sprinkled rather than poured. See All Good FactsAlthough some ancillary features of social-contract theory were contested, virtually every American political leader in the late 18th century agreed about its core features. Most importantly, the founders recognized two crucial limitations that social-contract theory imposes on governmental power to restrict natural rights. First, natural rights can be restricted only when the people themselves consent to the restriction, either in person or through their political representatives. This principle was a rallying cry for American colonists advocating for independence rather than submitting to British taxation when they had no representation in Parliament. Second, the government could restrict natural rights only when doing so promoted the public good — that is, the aggregate happiness and welfare of the entire political society. Individuals entering a political society, John Locke explained in his widely read Second Treatise, surrender “as much … natural Liberty … as the Good, Prosperity, and Safety of the Society shall require.” As a general matter, therefore, the concept of natural rights helped define who could restrict individual liberty (namely, a representative legislature) and why they could do so (namely, to promote the public good). But natural rights were not a set of determinate legal privileges or immunities that the government could not abridge. Natural rights, it bears emphasis, could be restricted by law to promote the good of the society. “[T]he right to speak and act,” American patriot James Otis explained at the onset of the colonial conflict, “is limited by the law — Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.” Effectively, this put the legislature — not judges — in primary control over how far to restrict expression. The freedoms of speech and of the press, in other words, were a primarily philosophical concept — not a strictly legal one. At the same time, the founders also appreciated that certain regulations of speech were not in the public interest and were, therefore, beyond the scope of legislative power. The famous “rule against prior restraints” — prohibiting the government from requiring preapproval of publications — is one example. Another is that well-intentioned criticisms of the government could not be punished. (Deliberate efforts to mislead the public were an entirely different matter.) The First Amendment thus prevented temporary legislative majorities from abandoning these settled principles. How much further the speech and press clauses went, though, was up for debate precisely because the founders often disagreed about exactly what restrictions of expression promoted the public good. This conflict was especially clear in the late 1790s as Americans clashed over the constitutionality of the federal Sedition Act. Members of the Federalist Party — the party of President John Adams — argued that maintaining a republican government required punishing those who falsely and maliciously criticized the government. “[E]very individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government,” Federalist jurist Alexander Addison wrote. But this hardly implied constitutional protection for deliberately misleading the public. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist congressman John Allen asked rhetorically, “am I at liberty to falsely call you a thief, a murderer, an atheist?” Stopping the spread of lies, Federalists insisted, was essential to maintaining a well-informed electorate and, thus, a republican government. In response, Jeffersonian-Republican opponents of the Sedition Act did not even try to defend the notion that all speech is beneficial. “It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on [an] unlimited right of enquiry,” Elizabeth Ryland Priestley wrote. The problem for Republicans, however, was the prospect of governmental abuses of power. Authority to punish sedition, Priestley explained, “once conceded, may be extended to every [opinion] which insidious despotism may think fit to hold out as dangerous.” In other words, Republicans still assessed questions of free speech in terms of the public good — the core principle set out by the First Amendment — but Republicans were worried that Federalists were pursuing their own narrow partisan interests rather than the general welfare and that these abuses of power would stifle useful public debate. This process of accumulating and refining constitutional principles over time through political means is foreign to us. Rights in the modern sense are counter-majoritarian limits on legislative power, so it seems strange that their scope could somehow depend on political decisions. For us, judges have that job. For people born and raised in the tradition of the customary British constitution, however, the logic of recognizing constitutional limits through political rather than judicial means makes perfect sense. “[C]ustomary law carries with it the most unquestionable proofs of freedom,” explained James Wilson, a delegate to the Constitutional Convention and later Supreme Court justice. Politicians do abuse power, of course. But for the founders, once legislators agree on a constitutional principle, and once that settlement remains in place for some time, the principle becomes binding. “[L]ong and uniform custom,” English jurist Richard Wooddeson noted in 1792, “bestows a sanction, as evidence of universal approbation and acquiescence.” It was, in other words, as if the people themselves had spoken. For the drafters of the Bill of Rights, the First Amendment fit within this familiar tradition. Well-established principles about expressive freedom would limit Congress, and judges and juries could enforce these settled boundaries of governmental authority. But, otherwise, the First Amendment would leave the task of defining the public good to the people and their representatives. For the founders, judges could not create new limits on governmental authority. That development came a century and a half later as the Supreme Court began to strike down state and federal restrictions of speech in the 1930s. The vision embraced by the justices was still evolutionary — recognizing new constitutional principles over time. But going forward, courts, rather than legislatures, assumed primary responsibility for determining the scope of constitutionally enumerated natural rights. This is when we began to lose touch with this part of our constitutional past. The rights recognized in the Bill of Rights all started looking the same, without distinctions between natural rights and positive rights. All of these rights, in turn, became trump cards that individuals began to play against legislative claims to the common good. Political settlements no longer mattered; judges were now supreme exponents of the Constitution. Questions of policy — questions about what types of laws promoted the general welfare — transformed into an abstruse web of legal doctrines. Rather that promoting engaged civil debate in the political sphere, invoking “rights” is now a way of shutting that debate down. Perhaps the way the founders understood the First Amendment is ill-suited for our modern world, where distrust and disdain for politics constantly seems to reach new heights. From abortion restrictions to gun-control laws to limits on speech, Americans by and large look to courts, rather than to ourselves and our political representatives, to define and protect our rights. Constitutionally speaking, we live in a different world. Perhaps we can’t or shouldn’t go back. But at the very least, history can help open our minds to new ways of thinking and help us appreciate the foreignness of our constitutional past. Rights were not always claims against the public good, and judges were not always the ones who decided their full scope. Where we go from here is up to us. |
The first amendment to the constitution was intended to
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