The First Amendment

B. Before the First Amendment was amended to the Constitution, the founding fathers debated harshly over the wording of the Amendment.

2. Soon Congress wanted a similar bill amended to the Constitution , but it also wanted more freedoms.

a. “It was feared that without specific guarantees the civil rights and liberties of the people and the states would be at the mercy of the proposed national governments.”

3. Since the founding fathers knew that a bill of rights, with a strong first amendment, needed to be added to the Constitution they requested drafts be submitted.

b. James Madison in June 7, 1789, “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.”

c. Samuel Livermore in August 15, 1789, “Congress shall make no laws touching religion, or infringing the rights of conscience.”

4. Of the 17, 10 were ratified with a strong First Amendment that reads, “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."

5. Through all the arguing, the First Amendment was ratified and amended to the Constitution, but this did not cease the arguments of what those 45 words mean in practical use.

C. Defining exactly what the “Separation of Church and State” clause of the First Amendment means has been left up to Supreme Court decisions.

D. Freedom of Speech is one of the most fundamental rights as a citizen of America, but though it is fundamental it is still not absolute.

E. Though citizens have the freedom of the press, the freedom brings with it a responsibility.

F. The “right of the people peaceably to assemble” has been limited to certain groups.

G. The right to petition the government again is limited in its rights for its citizens.

H. In conclusion, the rights of the First Amendment has had controversial battles in the Supreme Court.

The First Amendment is the most controversial Amendment in the constitution in all of American history. For the entire existence of American History, Americans have challenged and drawn conclusions of what the First Amendment means to its citizens. The conflict over the First Amendment is that its language was written to be “living” or loose, so that it could be interpreted and still be useful for every generation. This “living” First Amendment with its loose language caused many challenges in the Supreme Court. The Supreme Court has helped America understand its rights as citizens, but its citizens must understand that the rights in the First Amendment are not absolute rights. The rights are limited to what will be beneficial to society. The Bill of Rights, especially the First Amendment, “are limited by the coexisting rights of others and by the demands of national security and public decency.”[1] This paper will explore this “living” First Amendment and explore the Supreme Court decisions that have affected America during its years of existence.

Before the First Amendment was amended to the Constitution, the founding fathers debated harshly over the wording of the Amendment. The First Amendment had its roots in a bill written by Thomas Jefferson for the Virginia Legislature. The bill was called the Virginia Bill on Religious Freedom and was proposed in 1779.[2] After much debate and heated, impassioned speeches the bill was made into law in Virginia in January 16, 1786. Soon Congress, knowing they also needed a similar freedom bill, wanted to amend a bill of rights to their Constitution, but the Congress wanted more freedoms than just religious freedom. In Congress and in political circles “It was feared that without specific guarantees the civil rights and liberties of the people and the states would be at the mercy of the proposed national government.” states Robert Cushman in his book Leading Constitutional Decisions.[3] Since the founding fathers knew that a bill of rights, with a strong first amendment, needed to be added to the Constitution they requested drafts be submitted. By the deadline time for the drafts, there were 17 bills of rights from different members of Congress and the political arena. Once Congress had the submission in hand it was time once again to debate the validity and wording of each. James Madison on June 7, 1789 was quoted as wanting the First Amendment to read as follows, “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.”[4] Since this wording came from the then famous and highly respected James Madison his wording was considered accurate enough, until Samuel Livermore countered with his own wording of the First Amendment. Samuel Livermore on August 15, 1789 was quoted as wanting the First Amendment to read as follows, “Congress shall make no laws touching religion, or infringing the rights of conscience.”[5] These two wordings and many others were debated in Congress. Many different changes and add-ons were inserted into the First Amendment and all of the other pending Amendments. Finally, on December 15, 1791, Congress agreed on the wording of the First Amendment. Of the 17 purposed bills of rights, Congress ratified 10 on that day. The wording of the First Amendment that is now widely known as the First Amendment reads,

“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."[6]

Despite much-heated debates and controversies, the First Amendment was ratified and amended to the Constitution, but this did not cease the arguments for what those 45 words mean in practical use.

Defining exactly what the “Separation of Church and State” clause of the First Amendment means has been left up to Supreme Court decisions. The Separation of Church and State clause has been referred to this by the words in the First Amendment stating, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thomas Jefferson coined the separation term shortly after he was elected President. After a harsh presidential campaign, some Baptists from Connecticut requested that the new President call for a national day of fasting so the country could recuperate. Jefferson felt that the nation should not set aside a holiday for religious reasons. He thought that the Church and State were different organizations with different goals and should act apart from each other, “thus building a wall of separation between Church and State.”[7] With that statement, Jefferson began a whole slew of supreme court challenges to decide how much separation should there be between the Church and State that would be beneficial to society. In Minersville School District vs. Gobitis (1940), the opinion of the court finally helped realize the limited rights of the First Amendment. The decision of the court was “Freedom of religion is not absolute, and that compromises may be necessary in order to secure the national unity, which is the basis of the national security.”[8] This decision helped future Supreme Courts to understand the separation of Church and State. That freedoms and rights are limited to the context of what is beneficial to the rest of society. In Margh vs. Chambers (1983) the question was raised if a chaplain saying a prayer at the beginning of every session of Congress was supporting a religion and abolishing the rights of those that don’t believe the same way. The Supreme Court took this case and the Court decided to “[hold] valid the employment of a chaplain”, that “the practice of opening legislation sessions with prayer has become part of the fabric of our society.”[9] So, in this case, the Supreme Court decided that those activities that just have always been done in society are not inherently supporting a religion but a heritage and a way of American life that the Courts should not do away with. In the case of Allegheny County vs. Pittsburgh ACLU (1989) the challenge was raised if the nativity scene, if displayed on government property, was unnecessarily supporting a religion. The Supreme Court agreed to judge this case. In the details, Allegheny County had displayed a Christmas Tree, a Chanukah, and a manager scene in front of their courthouse for the Christmas holidays. The ACLU was enraged that on government property was clearly religious symbols. The Court decided that “the display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion.”[10] The Court found that displays that were related to the holiday season and were not an endorsement of a religious ceremony of any kind. This gave state and local governments the freedom to display ornaments that were inherently religious if of course they allowed all parts of the season. The Court saw the Christmas Tree as for the “secular” community, the Chanukah for the “Jewish” community, and the nativity scene for the “Christian” community. Since all aspects of the holiday season were represented, the Court did not feel they were abolishing other citizens’ rights. In Edwards vs. Aguillaro (1987) the challenge of teaching creationism, the theory that a Supreme Being created life in the universe a standard Christian belief, was tested. From the beginning of this country, public education was also religious education. Louisiana passed a law requiring teachers to teach creationism if they decided to teach evolution, so the students would understand both theories and would then judge for themselves which one is scientifically more true. This decision made it unconstitutional to teach religious subjects as a required course in a public school. The Court decided that “the teaching of evolution was conditioned on the teaching of a religious belief…. was therefore unconstitutional under the Establishment Clause.”[11] Other such decisions dealing with the Amish people, who decided that they did not want their children to be forced to go to school after the 8^th grade, because it wasn’t against their religion was upheld. Or the decision about the Mormon faith and their belief in their religious practices of polygamy that was deemed unlawful even in the Supreme Court. These and many more decisions about the Separation of Church State have been decided in the Supreme Court.

Freedom of Speech is one of the most fundamental rights as a citizen of America, but though it is fundamental it is still not absolute. The freedom of speech clause has usually only been allowed to been applied to those who do not represent a danger to society by speaking how they please. In the Sedition Act of 1798 the law “provided severe punishment for false, scandalous, and malicious writing against the government.”[12] During this time 10 people were convicted of Sedition. Each of them served time and had to pay large fines. However, President Jefferson pardoned them and Congress refunded their fines. This Act was the first in many that limit the freedom of speech especially during times of war or national stress. The Espionage Act of 1917 “penalized any circulation of false statements made with intent to interfere with military success.”[13] Also, in the Sedition Act of 1918 “it [was] a crime to say or do anything which could obstruct the sale of government bonds.”[14] During the time of these two Acts a little less than a thousand people were convicted. With so many people getting convicted the Supreme Court jumped in to find the constitutionality of what was going on. In Schenk vs. US (1919) the Supreme Court decided upon the “clear and present danger” test by stating the speech that “would cause clear and present dangers that Congress has a right to prevent”[15] would not be tolerated. The clear and present danger test became the standard by which all other cases of challenges of freedoms were tested. With the clear and present danger test constitutionally functional it was easy to decide on two other pending Supreme court decision. Frohwerk vs. US (1919), involving a pro-German newspaper man, and Debs vs. US (1919), involving a Socialist leader, were both found that did not have the constitutional right to say and do what they did. The government was in their right to charge them under due process of law. In 1917 the “bad tendency” test was created preventing speech which had a tendency to bring violations of the law. With the clear and present danger test and the bad tendency test in place, courts could then take on other cases. In Jamison vs. Texas (1943), Jamison was a Jehovah Witness who passed literature out about his religion on the public street corner. This situation went to the Supreme Court. In the end, it was found that the Supreme Court “forbade entirely the distribution of literature was unconstitutional” on public sidewalks.[16] Now during the 60’s and 70’s the African Americans of this country were crying out to gain their own rights under the First Amendment. Due to the clear and present danger test and the breach of peace test, African Americans were usually exempt from the First Amendment rights due to the Whites of this country usually getting upset at the fact that they are speaking out. So, since what the African Americans spoke created havoc, many courts found them in guilty of breaching the peace and saying things that they would know would cause a clear and present danger.[17] During this time the NCAAP came about to be a legal defender of African Americans. The NCAAP also, went to court and even as high to the Supreme Court to defend itself and other African Americans from “white” organizations that wanted to destroy the civil rights movements.[18] Eventually, the African Americans with the help of the Supreme Court won cases supporting their equal rights of the First Amendment to speak out against injustices that they experienced. In another case about speaking out, Texas vs. Johnson (1989) Johnson had burnt a US flag as an outcry to the leadership of President Ronald Reagan and in spite of the Flag Protection Act of 1989. The Supreme Court heard this case and decided that Johnson had a right to burn the flag in spite of the law, due to his “expression of dissatisfaction with the policies of the country”.[19] This decision went along with a similar decision of Cohen vs. California (1971) where the courts decided, “If there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[20] With that statement one can see the differences of decisions of old where anything malicious was punishable and how now the government should not prohibit something on the bases that it is “offensive”. Just recently in the ACLU vs. Reno (1996) case, disagreements over the Communications Decency Act of 1996 were voiced. President Clinton wanted reform telecommunications industry with a new bill, but it also came under attack when in the Communications Decency Act it was called for censoring certain “offensive” material.[21] The ACLU, backed by many large name internet companies, tried to defeat the Decency Act. In the end, Janet Reno, Attorney General, decided to make changes to it. As it was stated, freedom of speech is a fundamental right, but it is limited in what society at the time decides beneficial.

Though citizens have the freedom of the press, the freedom brings with it a responsibility. The responsibility the press has is to bring to the public that which is beneficial to society as a whole. This was challenged in the New vs. Minnesota decision of 1931. In Minnesota there was a law that prevented malicious, scandalous, or obscene literature to be printed in the state. If it was found that such documents were printed the judge would have the printing press “padlocked”.[22] This padlock would stay on there till that judge that had it put in on found the time to hear the agreement from the editor that he would not print such things again. The case was taken to the Supreme Court and the Court found the law that “padlocked” the press was unconstitutional, that the state did not have the constitutional right to forcibly censor the press. In Burstyn vs. Wilson (1952) the city of New York was censoring the movie The Miracle for reasons of being sacrilegious. The Supreme Court decided that New York could not do that under the First Amendment rights of the press. The Court voided the censorship and the movie was released in its entirety. In Paris Adult Theatre I vs. Slaton (1973) the Supreme Court decided the case of an “adult only” theatre. The theatre showed pornographic films to adult patrons. A concerned citizen of the city decided that that infringed on his rights. The Court stated that “no adults have the right to see what they want but the right of the nation and of the states to maintain a decent society may outweigh the individuals right to do what he will in private.”[23] In this case, censorship was considered constitutional. “The Court was not troubled by the lack of conclusive scientific data to show that obscene materials adversely affect individuals or society.”, says Robert Cushman.[24] But this changed as society changed, just what the “living” First Amendment is supposed to do. In another case, New York Times Co. vs. US (1971) the New York Times Co. or the Times ran an article from an informant within the Pentagon. Daniel Ellberg, was a Pentagon employee, had received a 7,000 page top secret study proving the deliberate intervention of the US into the Vietnam conflict. The study described the actions of past Presidents themselves deliberately intervening. Ellberg could not just file the report without a guilty conscious, so he secretly turned the study over to the Times. The Times knowing the document was top secret classified from the Pentagon decided to run the study as a weekly article till the whole study was exposed even though.[25] The courts brought suit against them that the Times does not have the right to print top secret information in the press. This went to the Supreme Court and the Court decided that they needed to “delay publication until the impact of the release”[26] was investigated. Eventually, the Times was free to release the study. Here in this case the government tried to infringe on the rights of the press, but the press won in the end. The freedom of press gives the press to deliver information anyway they see how understanding the responsibility that it must be beneficial to society.

The “right of the people peaceably to assemble” has been limited to certain groups. Those groups that can meet usually are those that will meet and not cause a clear and present danger to society. During American history and due to the “living” aspect of the First Amendment some groups that were considered unconstitutional are now are considered safe to meet. In Dennis vs. US (1951) the communist party was considered a criminal conspiracy and therefore did not have the right to assemble.[27] However, today in the election of president, usually there is someone running on the communist party ticket. In the Smit Act of 1940 it would punish “those that organize together for purposes of overthrowing the government.”[28] Again, however, there are many militia groups that in our society that meet together for the sole purpose of separating from the US or to overthrow the US. Today, it is not a violation to meet as long as the group does not act upon why they meet. The rights to peaceably assemble today have loosely allowed an almost absolute right.

The right to petition the government again is limited in its rights for its citizens. During the 60’s and 70’s when African Americans were fighting for their inclusion in the First Amendment rights, many times they could not get it. In Walker vs. Birmingham (1967) Wyatt T. Walker fought to have the right to petition the government in Birmingham. Walker with Martin Luther King Jr. and Fred L. Shuttlesworth decided to have a march in downtown Birmingham, Alabama. The three requested the appropriate sanctions and permits, but were denied. Though they were denied they three led a group of 60 people up and down the streets of Birmingham for two days. Birmingham fined Walker for disobeying and for marching without a permit. Walker thought he had a right under the First Amendment to march if his group felt like it. However, the Court felt, “When protest takes the form of mass demonstrations the prevention of public disorder and violence become important objects of legitimate state concern.”[29] The Supreme Court did find that it was detestable that the city denied Walker’s group, but in the end since they did not have a permit, Walker did not have the constitutional right to march. The right to petition the government was not granted due to the fact that it was not beneficial to society as a whole. The right to petition is limited and is not a absolute right.

In conclusion, the rights of the First Amendment has had controversial battles in the Supreme Court. Though the First Amendment was created some 200 years ago, it is still able to “live” in today’s society. The language is loose enough to be interpreted many ways, which make it that the First Amendment is not a absolute right. The First Amendment are rights to a citizen if it is beneficial to society that he have that right. If the action of one takes or infringes on other’s rights to the First Amendment, the Supreme Court will take your right away, rather than penalize a bystander of your action. This paper explored the different aspects of the First Amendment and how it became to be interrupted.

[1] Cushman, Robert F. and Susan P. Koniak. Leading Constitutional Decisions. New Jersey: Prentice Hall, 1992. (231)

[2] The First Amendment to the Constitution of the United States. http://www.rcfp.org/handbook/viewpage.cgi?0403, October 10, 1999.

[3] Cushman (158)

[4] The First Amendment to the Constitution of the United States

[5] The First Amendment to the Constitution of the United States

[6] The First Amendment: A Summary. http://www.fac.org/press/fas.htm, October 16, 1999.

[7] The First Amendment to the Constitution of the United States

[8] Cushman (287)

[9] Cushman (229)

[10] Cushman (294)

[11] Cushman (187)

[12] Cushman (231)

[13] Cushman (232)

[14] Cushman (232)

[15] Cushman (243)

[16] Cushman (271)

[17] Cushman (268)

[18] Cushman (270)

[19] Cushman (280)

[20] Cushman (283)

[21] A Timeline of Internet Decency Milestones. http://www5.zdnet.com/zdnn/content/pcwo/0319/pcwo0008.html, October 16, 1999.

[22] Cushman (239)

[23] Cushman (249)

[24] Cushman (249)

[25] Cushman (256)

[26] Cushman (257)

[27] Cushman (238)

[28] Cushman (238)

[29] Cushman (275)

1. A Timeline of Internet Decency Milestones. http://www5.zdnet.com/zdnn/content/pcwo/0319/pcwo0008.html, October 16, 1999.

2. Cushman, Robert F. and Susan P. Koniak. Leading Constitutional Decisions. New Jersey: Prentice Hall, 1992.

3. The First Amendment: A Summary. http://www.fac.org/press/fas.htm, October 16, 1999.

4. The First Amendment to the Constitution of the United States. http://www.rcfp.org/handbook/viewpage.cgi?0403, October 10, 1999.

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Table of Contents Pages

Outline

A. Intro: The First Amendment is the most controversial Amendment in the constitution in all of American history.