CHAPTER
6

The First Amendment: Freedom of Expression

In This Chapter

• Freedom of religion
• Freedom of speech
• Freedom of the press
• Freedom of assembly
• Freedom to petition

“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.”

At the 1787 Constitutional Convention, the framers argued vehemently over whether their new Constitution needed provisions that specifically protected individual rights.

On one hand, the anti-Federalists wanted a list of individual liberties—a Bill of Rights—to restrain the authority of the new national government. On the other hand, the Federalists argued that a national government could enhance rather than inhibit individual liberty. The Federalists believed the premise of the Constitution—that people grant rights to the government rather than the other way around—provided adequate protection for “natural” rights. The Federalists were also afraid that if the framers tried to list individual liberties in the Constitution, anything that wasn’t listed would not be protected, that listing individual rights might actually lead to more limitations on personal freedom.

As a result of the anti-Federalist sentiment, and in response to calls from the states for specific protections for individual liberties, the Bill of Rights was proposed in the form of the first 10 amendments to the Constitution. Ratified in 1791 (although Georgia, Massachusetts, and Connecticut did not formally ratify the amendments until 1939), the Bill of Rights strives to establish a delicate balance within a democracy. Yes, the will of the majority should rule. But no, the majority should not be able to limit personal freedom as long as it doesn’t intrude on other individuals or society. Individual rights should not be subject to the domination of the majority and should not be limited by a popular vote.

The First Amendment, also called the Great Amendment, is in many ways the cornerstone of America’s free, open, and tolerant society. It’s the basis of a democracy that prizes individual liberty. The amendment protects the freedom of religion, press, speech, assembly, and petition. It guarantees that Americans can share the information they need for a robust public debate on the issues and act on the issues.

The First Amendment

It’s important to note that the five freedoms protected by the First Amendment are not merely related. The way the framers presented them, in order, they build upon each other. The freedom of religion protects how you believe, think, and feel. Freedom of speech allows you to express your thoughts and beliefs. Freedom of the press guarantees your ability to spread the word more broadly about your thoughts and beliefs. Freedom of assembly protects your right to get together with other people to share views, debate, and plan. Freedom to petition gives citizens the right to join together to express opposition to government action and ask for changes and maybe compensation.

The five freedoms specifically protected in the First Amendment are not mutually exclusive, of course, so there has been considerable overlap in real-life cases. Freedom of religion is sometimes also freedom of speech, for example, and freedom of speech is sometimes also freedom of the press or freedom to petition. Taken together, the rights protected in the First Amendment are categorized as freedom of expression.

Beginning with “Congress shall make no law …,” the First Amendment originally applied only to federal limitations on individual rights. However, the Fourteenth Amendment, ratified in 1868, granted equal protection under the laws to all citizens. Under the Fourteenth Amendment’s Incorporation Doctrine, the Supreme Court eventually extended the protections of the First Amendment, along with virtually all the rest of the Bill of Rights, to apply to state actions, too.

Perhaps no other part of the Constitution reflects the changes we have seen in American government, society, and culture as clearly. As times have changed, our standards have changed for the way we look at many aspects of society, including what is obscene, what is offensive, what is dangerous, and what is a threat to national security.

Largely because of its tension between individual rights and the protection of society, the First Amendment remains controversial and is often the battleground for arguments over what is right and wrong, and what is good and bad, in our culture. That is why First Amendment cases are so often where legal scholars lock horns over the two widely different views of the Constitution in modern society: if you disagree with a ruling, you are more likely to say the “activist” court went too far in making a new law that was not intended by the Constitution; if you agree with a ruling, you are more likely to say the court did a proper job of interpreting the Constitution.

It frequently has been left to the Supreme Court, the court of last resort, to decide exactly what is or is not legal or illegal under the First Amendment. It is remarkable to think that so many of those decisions are made, and will be made, by nine middle-aged to elderly lawyers—and sometimes the most momentous cases are determined by 5–4 decisions. If one justice would change his or her vote, the result would be the opposite.

Indeed, it is not hard to find similar court cases, with comparable sets of facts and decided by the same nine justices, where one case has been decided 5–4 on one side of an issue and the other case has been decided 5–4 on the other side of the issue after a single justice changed votes.

Freedom of Religion

Many early colonists came to the New World to escape religious persecution, but once they got here, they themselves did not necessarily practice religious freedom or tolerance. Many early American communities ostracized and sometimes punished people for not following their religion or even their sect of a shared religion. They came to America to practice their religion, not to let you practice yours.

From Massachusetts to Virginia, the colonial Baptists seemed particularly prone to persecution. They were thrown in jail for offenses as varied as failing to follow the official Church of England teachings to refusing to pay taxes to support other churches preferred by colonial officials.

In 1663, the Charter of Rhode Island guaranteed religion freedom; in 1708, Connecticut guaranteed “full liberty of worship”; and by the time the framers were considering a new constitution, they were in general agreement that there would not be a national religion. Jefferson, Madison, and other framers talked up separation of church and state, using those words.

The First Amendment guarantees the government will not prefer one religion over another. It also guarantees the government will not prefer religion in general over nonreligion or the lack of religion, and it will not prefer nonreligion over religion.

One example is a 1994 case in which the Supreme Court struck down a New York state law that outlined a school district conforming to the borders of Kiryas Joel, a settlement of Hasidic Jewish families, to create its own school district. The court said that action amounted to special treatment for a religious group and was, therefore, unconstitutional.

The protections for religion in the First Amendment are two-pronged. The Establishment Clause says “Congress shall make no law respecting an establishment of religion,” while the Exercise Clause says “or prohibiting the free exercise thereof.” The Establishment Clause is considered absolute; the government cannot prohibit you or anyone else from establishing or following your own religion.

There are many limitations, however, in the interpretations of the Exercise Clause: you can believe in your religion, but that does not give you the right to practice it any way you want. And there may be restrictions on what you can do in the name of your religion.

Religious Practices

The Exercise Clause covers religious practices. That might be something we do because our religion encourages or requires it, or it might be something we don’t do because our religion prohibits it.

In one of the first religion cases to come before the Supreme Court, a Utah man asked the justices to overturn a federal law prohibiting polygamy, saying having more than one wife was part of his Mormon religion. The court upheld the polygamy law, reasoning that religion was not a license for extreme behavior. After all, some ancient religions allowed human sacrifice.

The Supreme Court considered a spate of First Amendment religion cases in the mid-twentieth century, many of them involving Jehovah’s Witnesses appealing against local laws aimed at keeping them from practicing the “witness” part of their faith by going door to door and handing out leaflets. One law that was overturned required them to have permits; another let authorities charge them with littering for leaving their leaflets around town.

In general, the courts must find a “compelling interest” for the government to overcome a religious practice, as in a 1972 case, Wisconsin v. Yoder, in which the Supreme Court said Amish children cannot be required to stay in school beyond the eighth grade if it violates their religion. On the other hand, in a 1990 case, the court denied the appeal of two workers who were fired for using peyote on the job, claiming it was part of their religion. The court said that does not give them immunity from “an otherwise valid law prohibiting conduct the State is free to regulate.” A later court case struck down a Hialeah, Florida, ordinance banning ritual animal slaughter by Santeria followers while at the same time allowing kosher butcher shops to operate.

In recent years, the Exercise Clause has become the focal point of reaction to gay rights and equal marriage, especially since the U.S. Supreme Court struck down the federal Defense of Marriage Act in Windsor v. United States in 2013 (see Chapter 9) and legalized same-sex marriage in all 50 states in Obergefell v. Hodges in 2015 (see Chapter 13).

Those decisions recognizing the rights of people in same-sex marriages are in conflict with another Supreme Court decision, Burwell v. Hobby Lobby Stores, Inc. This 2014 decision held that employers could not be required to provide employees free access to contraception. The employers in the case argued that their religious beliefs against contraception prohibited them from enabling contraception for anyone else and that those beliefs were protected by their right to exercise their religion under the First Amendment. The question remains: does my right to have a gay wedding mean you have to sell me flowers? Or does my religious objection to gay marriage mean I don’t have to sell you flowers?

Evolution

It never got to the Supreme Court, but a famous trial in 1925 in Dayton, Tennessee, drew the lines in the ongoing debate over teaching evolution and creationism—science versus religion—in public schools. In the so-called Scopes Monkey Trial, famed orator and four-time presidential candidate William Jennings Bryan led the prosecution of schoolteacher John Thomas Scopes for violating a state law against teaching evolution. Clarence Darrow, one of the most highly regarded defense attorneys in U.S. legal annals, represented Scopes in a trial that riveted the nation’s attention. In the end, Scopes was convicted.

In 1968, the Supreme Court overturned an Arkansas law prohibiting the teaching of evolution. The court ruled that the law, which made it illegal “to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,” was a violation of the Establishment Clause.

In the 1987 case Edwards v. Aguillard, the Supreme Court struck down a Louisiana law that said if teachers talk about evolution, they also must talk about creationism.

In 2005, in Kitzmiller v. Dover Area School District, the Supreme Court held that it was an unconstitutional establishment of religion for schools to require the teaching of intelligent design.

Parochial Schools

Financial aid to private schools with religious affiliations has been and continues to be an issue. In a 1970 case, the court said religious organizations could be exempt from income and property taxes. The following year, it held that government financial aid to religious schools is permissible under the First Amendment, as long as the aid has a secular purpose, neither advances nor inhibits religion, and does not “excessively tangle” government and religion. However, local governments cannot pay part of the salaries of parochial school teachers and cannot “purchase” services from parochial schools as a way of providing financial support.

In one of the church-and-state questions that has not been fully decided, the Supreme Court has ruled that sometimes it may be permissible for state and local government authorities to provide financial aid to parents who send their children to parochial schools, provided the aid goes to the parents rather than to the religious schools.

In a pair of 1973 cases, the Supreme Court held that public funding could not be allocated to help low-income families pay their children’s tuition at parochial schools. But that ruling was modified in a 1983 Minnesota case, Mueller v. Allen, which granted tax breaks to parents for sending their kids to private schools.

In a number of cases, the courts have said the First Amendment does not prevent government financial assistance to colleges and universities with religious affiliations.

In more recent cases, the high court has approved state use of federal money for a program providing educational materials and equipment to both public and private schools as well as a Cleveland school vouchers program. In the Cleveland case, opponents said it was unconstitutional government support for religious education, but the Supreme Court said vouchers, like tax breaks, were legal as long as they went to parents rather than to churches or church schools.

School Prayer

In 1962, the Supreme Court ruled that the New York Board of Regents violated the First Amendment by requiring a prayer, written to be nondenominational, to be recited in public schools. The following year, the court ruled that public schools cannot require daily Bible readings or recitations, including the Lord’s Prayer. Justice Tom Clark wrote, “They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.”

A 1985 Supreme Court case overturned an Alabama law allowing schools to have a 1-minute period of silence at the start of the school day. It might have been permissible if the minute of silence was for nonreligious purposes—secular meditation, for example—but the court found that it was for prayer.

Subsequent cases have held that invocations at public school graduation ceremonies are unconstitutional, even if attendance is voluntary and the students vote to have an opening prayer. The same is true for student-initiated prayers before public school football games.

In 2000, a California father challenged a school district’s practice of having students recite the Pledge of Allegiance. He said the phrase “under God” was akin to forcing his daughter to pray in school. A federal appeals court agreed with him in 2002, but the Supreme Court reversed that decision, not on First Amendment grounds but on a technicality—the father did not have custody of his daughter and, therefore, did not have legal standing to sue over her education.

Similarly, displays of religious symbols such as the Ten Commandments may or may not violate the First Amendment. The court pointed out the distinction, with a pair of 5–4 rulings, in two cases in 2005. The cases were distinguished by a single swing vote—Justice David Souter. Souter said a Ten Commandments monument in a park at the state capitol in Austin, Texas, was okay because other nonreligious symbols of law and justice were present in the park as well. On the other hand, he said Ten Commandments plaques placed in Kentucky courthouses appeared to be religious symbols because they stood alone, rather than as part of a larger secular display.

One of the most highly publicized cases involving religious symbols began in 2001, when Alabama Chief Justice Roy Moore installed a large Ten Commandments monument in the state judicial building. The American Civil Liberties Union (ACLU) and others filed suit, claiming the monument violated the separation of church and state, and the federal courts ordered the monument removed. Moore refused and was removed from office—along with the monument. He appealed to the U.S. Supreme Court, which refused to take the case and let the lower court orders stand.

Freedom of Speech

We have a participatory democracy. Every citizen has a right, and maybe even a responsibility, to participate in civic affairs. That means we’ve got to share our thoughts, opinions, and ideas. We’ve got to communicate. We’ve got to talk. And that’s why the First Amendment guarantees free speech.

Without freedom of speech, life would not only be boring, but we’d not be exposed to the theories and ideas—along with the criticisms and complaints—that make us think about how our government is doing and how our elected officials are representing us. Could they be doing a better job? Let’s talk about it with other people and see what they think. That is freedom of speech.

Political Speech

Historically, governments put limits on free speech to maintain control of society and stay in power. If a king or dictator didn’t like what people were saying, those people were tossed behind bars—or worse. That’s what the English governors in the colonies did in the name of the king.

The First Amendment was supposed to keep that from happening, but it only took 7 years, until 1798, for Congress to pass the Alien and Sedition Act at the behest of President John Adams, who wanted a way to go after the people who were criticizing his government. It was an ironic piece of legislation, considering the country had been created not long before by a handful of radicals—including Adams himself—who criticized the government to the point of advocating and then leading a violent overthrow.

The act made it illegal to say or write anything “false, scandalous, or malicious” about the government—in other words, anything the government didn’t like. The act expired 3 years later, and when Thomas Jefferson became president, he pardoned the 10 people who had been convicted of sedition.

Freedom of speech is not absolute; you cannot say anything you want, anytime, anywhere. And the definition of free speech, always evolving, often is defined more by what you are told you cannot say than by what you can say. Free speech, like other civil liberties, can be affected by the times, such as war or some other national crisis. From 1836 to 1844, for example, the House of Representatives had a gag rule preventing debate on abolition of slavery.

In 1917, Congress passed the Espionage Act, aimed at peace activists who tried to talk potential World War I recruits out of enlisting in the military. The following year another Sedition Act was enacted, making it a crime to speak or write anything negative about the government, the Constitution, or the American flag. The Supreme Court upheld a series of convictions growing out of opposition to U.S. participation in the Great War, as it was called at the time.

Not everybody, however, thought it was a good idea to send people to prison for being peace activists during World War I. In a dissent in a Supreme Court case that upheld a portion of the Espionage Act against criticizing the government, Justice Oliver Wendell Holmes wrote that “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Clear and Present Danger

In Schenk v. United States in 1919, which upheld the conviction of an activist passing out leaflets urging potential recruits not to join the military, Holmes enunciated a famous First Amendment doctrine: speech could be limited if it created a “clear and present danger” of criminal acts. In that case, Holmes also wrote one of the best-known misquotes in history. The commonly cited phrase is that free speech does not extend to “shouting fire in a crowded theater.” Actually, Holmes wrote that the First Amendment does not protect “a man falsely shouting fire in a theater and causing a panic.” He included “falsely,” but not “crowded.”

In response to the crackdown on free speech, the ACLU was formed in 1920 and could claim an early victory the following year when the Sedition Act was repealed. Just as Thomas Jefferson pardoned those convicted under the first Sedition Act more than a century earlier, Franklin Delano Roosevelt later issued presidential pardons to those convicted under the World War I Espionage and Sedition Acts.

The end of the war, however, did not end the tension between free speech and government interests, particularly in silencing critics such as anarchists and communists who advocated the overthrow of the government. In the 1925 case Gitlow v. New York, the Supreme Court ruled that the free speech guarantees of the First Amendment apply to state law via the Fourteenth Amendment but nonetheless upheld a pamphleteer’s conviction under New York’s antianarchy law.

The “clear and present danger” discussion has been revived in the age of global terror. Some political candidates, and a scant few constitutional scholars, have called for limiting the First Amendment’s free speech protections—including shutting down some websites—to keep terrorist organizations from spreading propaganda, raising funds, recruiting new members, and planning new acts of violence. Those proposals to restrict free speech—along with proposals to limit immigration based on religion—have been widely scorned, but even the most vocal First Amendment defenders concede that heightened danger from terrorism very well could result in more limits on civil liberties.

Fighting Words

At one point, the Supreme Court ruled that “fighting words”—the kind of statement that might make anybody punch the speaker in the nose—were not free speech. However, the court later backed away from the idea that it’s sometimes okay to resort to violence in response to someone else’s statement. Instead, the court acknowledged that outrageous or inflammatory speech may be protected if it makes you think. In a 1949 case, Justice William O. Douglas wrote, “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

In 1940, as World War II was heating up in Europe, the Supreme Court upheld a Pennsylvania law requiring children to salute the flag and recite the Pledge of Allegiance. “National unity is the basis of national security,” Justice Felix Frankfurter wrote. But that decision was overturned 3 years later in another Jehovah’s Witness case: kids were no longer required to pledge or salute at school. (It is worth noting that around the same time, the salute that schoolchildren used for the Pledge of Allegiance was changed to the hand over the heart. It had been a straight-arm, “Heil Hitler” salute, except with the palm up instead of down.)

With another war came another set of laws aimed at limiting free speech. In 1940, the United States enacted the Smith Act, formally the Alien and Registration Act, which again made it a crime to advocate the violent overthrow of the government. After World War II, the Smith Act became a Cold War tool for the government. It was used at the urging of J. Edgar Hoover, the director of the Federal Bureau of Investigation (FBI), to prosecute suspected communist activists. In 1951, the Supreme Court upheld a series of convictions under the Smith Act, ruling that it did not violate the First Amendment. The Smith Act technically remains on the books today.

The Vietnam War era sparked a flurry of First Amendment confrontations over free speech. In 1968, the Supreme Court upheld the conviction of a protestor who argued that burning his draft card was free speech, but the following year the court overturned the convictions of a group of Des Moines students who went to high school wearing black armbands to protest the war. In 1971, the court overturned the conviction of a protestor who wore a jacket bearing the words “F--- the Draft” into a courthouse.

The backlash against flag burning that began during the Vietnam protests has simmered since then. In 1989, Congress passed the Flag Protection Act, and soon after, the Supreme Court made two rulings, one voiding the new federal law and another striking down a comparable state law in Texas that said burning or otherwise abusing Old Glory is a legitimate expression of free speech.

Unpopular views, including those that are racist, may be protected by the umbrella of free speech, but there are limits. In a 1969 case, Brandenburg v. Ohio, the Supreme Court upheld the conviction of a Ku Klux Klan (KKK) member, saying his speech is not protected if it is “likely to incite or produce” violence. The court opinion noted that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy for the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In 2003, the high court ruled that a KKK cross-burning prohibition can be legal because it is so intimidating to black people, it effectively amounts to violence against them.

In 1982 in Board of Education v. Pico, the Supreme Court held that officials cannot pull books off school library shelves merely because they disagree with the ideas in those books. The decision said “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”

However, just as the federal government can withhold grants from artists, the Supreme Court ruled in 1991 that the government can withhold funding from health centers that discuss abortion as a method of birth control. The discussion is free speech, but that doesn’t mean the government has to support it with federal funding.

The early 1990s spawned a wave of so-called political correctness—the very phrase would seem to be a violation of at least the spirit and perhaps the letter of the First Amendment—that resulted in attempts around the country to ban “hate speech.” Those efforts were largely snuffed out after a 1992 Supreme Court ruling overturned a local hate-speech ordinance.

Whistle-blowers, or people speaking up about misdeeds in their workplaces, do not enjoy any special protection under the First Amendment. Some statutes do protect whistle-blowers, but the courts have recognized reasons that employers, especially the government, might legally require reticence among their employees, too. Protecting national defense secrets is a clear-cut example.

In a May 2006 California case, Garcetti v. Ceballos, the Supreme Court rejected the First Amendment claim of an assistant district attorney who said he was passed over for a promotion because he criticized his boss in public. He said he was a whistle-blower, but the court said the Constitution does not protect “every statement a public employee makes in the course of doing his or her job.”

Campaign finance laws have become a First Amendment issue in recent years. In the 1976 case Buckley v. Valeo, the Supreme Court upheld the part of the Federal Election Campaign Act that limited campaign contributions but struck down the part of the law that limited how much candidates can spend on their campaigns. Restricting campaign expenditures, the court held, was a restraint on freedom of expression.

Corporations as People

The next big campaign finance case was in 2010, when the Supreme Court held, in effect, that corporations are people, too—at least in terms of political donations.

In that case, a nonprofit corporation called Citizens United went to court to challenge Federal Elections Commission (FEC) rules that kept the group from advertising a documentary, Hillary, which was critical of Hillary Clinton during the 2008 presidential campaign. The FEC said the ads were prohibited by rules against corporations or unions spending money to influence elections within 60 days of a general election or 30 days of a primary. The Supreme Court ruled 5–4 in favor of Citizens United, saying corporations, just like people, have a First Amendment right to free speech, and spending money on a campaign is political speech. “The court has recognized that First Amendment protection extends to corporations,” Justice Anthony Kennedy wrote in the majority decision. “The court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”

Citizens United was complemented by another campaign finance decision in 2014, McCutcheon v. Federal Election Commission, which struck down federal rules limiting the amount of money individual entities, whether people or corporations, can donate in total during a 2-year election cycle. Limits remained on how much could be donated to individual candidates, removing the aggregate limits, but the changes in campaign finance law set the stage for the so-called PACs (political action committees) and super PACs that have brought virtually unlimited money into politics.

Obscenity

Obscenity is not protected by the First Amendment’s guarantees of free speech. A series of federal and state laws approved in the latter part of the 1800s was the first widespread effort to control obscenity in American culture. Known as Comstock laws, after antiobscenity campaigner Anthony Comstock, the laws made it criminal to sell or distribute “obscene, lewd or lascivious” materials, including “any article or thing” providing information on contraception or abortion.

The federal law and many of the state Comstock laws remain on the books and are still used to prosecute those who sell obscene material, but the age-old question remains: what is obscene? After all, one man’s pornography may be another man’s artistic erotica.

The courts have made a number of attempts to define obscenity and balance it against the guarantees of free speech. In the nineteenth century, the Supreme Court defined obscenity as material that would “deprave or corrupt those whose minds are open to such immoral influences.” In other words, if material offended the most sensitive people in society—if it offended pretty much anyone—it was obscene.

The standards have loosened over the decades, but it has been a continual struggle to define when, where, how, and why words may be of “prurient interest,” which means “too dirty” to those of us who do not sit on the U.S. Supreme Court.

But again, what is too dirty? Justice William Brennan offered the “utterly without redeeming social value” standard: something could be obscene, but if it had artistic or cultural value, it might be protected by the First Amendment.

A 1973 Supreme Court case, Miller v. California, offered a three-part test for whether speech is obscene:

• If the “average person applying contemporary community standards” would find that the material, taken as a whole, appeals to prurient interests.
• If the depiction or description is patently offensive sexual conduct that is defined and prohibited by state law.
• If, taken as a whole, the material lacks serious literary, artistic, political, or scientific value.

The current standards for obscenity do not include a national standard, except for child pornography. The courts have agreed that child pornography is never acceptable. In other types of obscenity, however, the courts are supposed to consider local or community standards.

The 1973 Miller provision for considering the literary, artistic, political, or scientific value allows for a nude stripper or live-sex performer in a bar to be regarded differently under the First Amendment than a nude actor appearing in Hair, a life study in an art gallery, or anatomical depictions in a medical journal. Another factor is the audience; material that can be viewed by children is treated differently from material restricted to adult eyes only, but even adult-only material can be obscene. The wider the audience, the more oversight: the FCC is allowed to regulate indecent speech because broadcasting’s “uniquely pervasive presence” means that children might see or hear it. It is also legal for local governments to impose zoning restrictions that control where adult businesses may operate. A 1998 court case upheld federal requirements for the National Endowment for the Arts to consider decency standards when awarding grants to artists; merely denying government funding does not infringe upon an artist’s freedom of expression.

As a society, we’re still trying to figure out how to handle child pornography and the internet. The Supreme Court found the Child Pornography Prevention Act of 1996 unconstitutional in 1997; the court said it was overbroad, with the potential authority for law enforcement officials to punish legal speech in the name of protecting children.

A subsequent law, the Child Online Protection Act (COPA), also ran into a series of First Amendment setbacks in federal courts. The Supreme Court said there may be “a number of plausible, less restrictive alternatives,” and said the government needed to justify COPA.

Campaigners for internet safety for kids could claim a victory, however, when the Supreme Court upheld the 1998 Children’s Internet Protection Act, which withholds federal money from schools and libraries that do not have antipornography filtering software on their computers with internet access.

Freedom of the Press

Freedom of the press is closely linked to freedom of speech. If it is okay to say it, it’s probably okay to publish it, too.

Our form of democracy relies on the press to perform the necessary but unofficial function of spreading around all that free speech so we have an informed citizenry capable of participating in the debates and electing the leaders we want to address the issues we care about. That’s why the press is called the Fourth Estate, informally supplementing the three official branches of government.

The 1735 trial of New York printer John Peter Zenger marked the beginning of the American free press. Zenger was jailed for publishing criticism of the royal governor, but a jury of colonists, responding to stirring arguments by defense attorney Alexander Hamilton, ignored the instructions of the governor’s court and acquitted Zenger. It was an important milestone in showing the colonists the power of the press—and the law—in fighting imperial rule from London. In practical terms, the case also laid down early precedents for American law: a jury can decide what is libel and what isn’t, and truth is a defense to libel. Later, in the Federalist Papers, Alexander Hamilton wrote, “The liberty of the press shall be inviolably preserved.”

As with free speech, times of national crisis often provide stern tests for freedom of the press. During the Civil War, President Abraham Lincoln ordered temporary suspension of the Chicago Tribune and later two New York newspapers for printing stories he viewed as disloyal to the Union effort in the Civil War.

The Supreme Court’s first free press case was decided in 1907, when the justices upheld the contempt conviction of a Denver publisher who had run criticisms of the Colorado Supreme Court.

In a 1931 case, Near v. Minnesota, the Supreme Court overturned a state court’s prior restraint order on the grounds that the First Amendment was designed primarily to prohibit government censorship. That case also extended the protections of the First Amendment to the states through the Equal Protection Clause of the Fourteenth Amendment.

A 1936 high court decision outlawed a state tax on advertising in newspapers with circulation of more than 20,000 a week. The court said such a tax could restrict the flow of “information to which the public is entitled in virtue of the constitutional guarantees.” It could be a form of censorship, in other words.

Censorship has been permitted, however, in instances such as wartime—in 1941, Franklin Delano Roosevelt opened, with Congress’s approval, an Office of Censorship—and there have been numerous examples of courts issuing gag orders to prevent pretrial publicity.

A major precedent for controlling pretrial publicity was the 1966 case Sheppard v. Maxwell, when the Supreme Court overturned the conviction of Dr. Sam Sheppard—the real-life inspiration for The Fugitive TV series and movie—on the grounds that newspaper publicity had kept him from getting a fair trial. Another example of censorship, sometimes in response to legal requirements but often voluntary self-censorship, is when the news media withholds the names of certain people involved in crimes, such as minors or rape victims.

Libel

The case that shaped our modern law of libel—when someone sues for defamation, or damage to his or her reputation—was New York Times v. Sullivan in 1964. Previously, the main defense to libel allegations was truth: if you said your reputation had been damaged by something I wrote about you, I had to prove it was true. The Sullivan case, however, set new standards for people who are public officials. Instead of proving that the allegation was true, a defendant merely had to show that the allegation was not made with actual malice.

Actual malice is defined as knowledge that the allegation was false or reckless disregard for whether it was false or not. The court’s reasoning was that society needs to be able to comment on and talk about public officials and that officials open themselves to criticism and commentary when they enter the public arena. If the press makes a mistake, the public official who has been wronged can collect money damages only by proving that the press either knew or should have known that the allegation was false.

The Supreme Court recognized that mistakes can be made in the press, particularly under deadline pressure, but reasoned that keeping accuracy standards too high could be a form of censorship and, therefore, a violation of the First Amendment. The “public official” standard for libel was subsequently expanded to include public figures, too, including celebrities.

Sometimes the best way to avoid libel damages, especially if you know what you’re saying is false, is to be as outrageous as possible. In a 1988 case, evangelist Jerry Falwell sued Hustler magazine for running a fake liquor ad showing Falwell in a lewd pose. The Supreme Court rejected the libel suit on the grounds that it was legitimate political satire, which has played “a prominent role in public and political debate” in American history. In other cases, however, the court has made it clear that not only facts, but also opinions, can be the basis for a successful libel suit.

One of the continuing issues in the American press is where the role of reporter ends and the role of citizen begins. In a 1972 case, Branzburg v. Hayes, the Supreme Court said reporters are not exempt from the normal responsibilities of citizenship, including testifying before a grand jury, just because they are reporters. We’ve also seen, in recent cases such as the investigation into the leaking of a Central Intelligence Agency (CIA) spy’s identity and the use of steroids in baseball, how reporters can be sent to jail—in theory indefinitely, since contempt of court need not carry a set term of imprisonment or even a maximum sentence—for refusing to provide law enforcement authorities and courts with information about confidential sources.

Reporters argue that freedom of the press allows them to protect their sources and that giving up their sources would discourage other whistle-blowers and leakers, but the courts have said that civic responsibility and the integrity of the legal system may be more important.

School-funded student newspapers have presented a number of First Amendment dilemmas. The courts generally have ruled that although student editors and reporters have First Amendment rights, school officials can impose editorial controls as long as the decisions are justified for legitimate teaching and educational purposes.

Looking ahead, the rapid changes in communications technology in recent years are presenting new challenges to the First Amendment and the concepts of freedom of the press. Instead of being in an office that can be searched or seized or shut down, new technology allows almost anyone to “publish” from almost anywhere. And the new world of self-publishing is forcing us to rethink and redefine just who is a journalist and who is deserving of First Amendment free press protection. Is a blogger a journalist? The rest of the world is watching China’s attempts to control the new media, including creating its own vast national intranet, limiting access to the world wide web, and jailing surfers who visit sites deemed pornographic or politically subversive.

Freedom of Assembly

The freedom to assemble—to talk, march, plot against the government, or cheer for your team—is closely linked to free speech. Also sometimes called the right of association, it means we can hang out with whomever we want—mostly. We can form political parties, special interest groups, clubs, and unions, but the First Amendment won’t necessarily protect us if those organizations, or some of the members we associate with, undertake illegal activities. Terrorist groups, for example, can be banned.

As with other aspects of the First Amendment, the tension is between freedom of expression and the need to protect society. It may be your right to organize a protest march, but the government may have the right to require you to get a parade permit and follow a certain route at a certain time in order to avoid snarling traffic and causing safety problems.

Throughout history, totalitarian governments have banned the right to assemble just as they have banned free speech and the free press. And we’re not talking about ancient history. In Iran in 1978, amid fears about the exiled Ayatollah Khomeini returning to lead a revolt, the late Shah’s government banned any public gathering of more than two people. In 2001, amid fears of a Montagnard uprising, Vietnam banned gatherings of more than four people in its Central Highlands. In September 2006, Thailand banned gatherings of more than five people. If people cannot get together, repressive leaders reckon, they cannot plan a revolution.

On a smaller scale, American officials have sometimes limited the right of assembly—such as through parade permits—solely to discourage causes they do not agree with. The Supreme Court has overturned state laws against being a member of the communist party, ruling that “peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.” In 1958, the court ruled that the National Association for the Advancement of Colored People (NAACP) did not have to turn over its membership roster to authorities, and later that communist party members could be state employees in Arizona and public school teachers in New York.

The suburbanization of America in the second half of the twentieth century led to a First Amendment debate over whether groups must be allowed to assemble—and speak—on private property such as malls and shopping centers. The reasoning is that malls have become the new town squares and village greens, where people historically would gather to talk about the issues of the day. The federal courts generally have said the right of association does not extend to private property and have sided with mall managers who want to keep out people chanting or distributing leaflets. In contrast, state courts have been more likely to recognize the “new town square” argument and give groups the right to assemble in malls as long as they behave themselves.

The tension between law enforcement and the right to assemble was in the headlines in the spring of 2003 when women’s groups converged on Georgia to protest the no-females membership policy of the Augusta National Golf Club, the home of the Masters Tournament. Local authorities quickly made new rules requiring 20 days’ notice for a permit to stage a public protest, leaving it up to the local sheriff to approve or deny permits and tell protesters when and where they could protest. The sheriff refused to let the women protest at the entrance to the club and instead moved them a half-mile away.

Freedom to Petition

This is the freedom to protest against the government, to ask for changes, and to ask that wrongs done in the name of the government be corrected. Sounds sort of like the Declaration of Independence, doesn’t it? It gives everyday citizens the right to protest and to sue in a court of law to correct wrongs.

The right to petition has not been particularly controversial since the mid-nineteenth century, but in the decades before the Civil War, the House of Representatives had a rule—it was actually called the “gag rule”—that barred Congress from considering any petition that had anything to do with slavery.

In more modern times, the right to petition often overlaps with free speech and free assembly, and the courts sometimes prefer to focus on those or other constitutional rights when lawsuits are brought over the right to sue. For example, in 1963, the Supreme Court overturned a Virginia rule prohibiting people from soliciting lawyers and ruled it was permissible for the NAACP to seek attorneys to handle civil rights lawsuits. The right to petition was an issue, but the court decided the case on free speech and free association grounds.

In a 1971 Connecticut case, the Supreme Court said an indigent couple seeking a divorce should not have to pay the usual court fees. The couple had filed their appeal on the grounds of the right to petition, but the court instead said that denying them a divorce for financial reasons was a violation of their right to due process—the right to have their case heard fully and fairly.

The due process rationale, rather than the right to petition, also is why prisoners are allowed access to law libraries when working on their own appeals.

In 1980, the Supreme Court ruled in Missouri v. National Organization for Women that the state of Missouri could not claim damages from the National Organization for Women (NOW) because of economic damage resulting from a NOW boycott to protest opposition to the proposed Equal Rights Amendment. The court said the boycott was a form of petition and was, therefore, protected by the First Amendment.

In a 1981 case, the court made it clear that the right to petition, at least in terms of the right to sue, does not extend to frivolous claims. The justices found in favor of a property developer who complained that his plans to build a shopping center were being blocked by lawsuit after lawsuit filed by other property owners and existing shopping centers.