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F, First Amendment.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

First Amendment.

More than a constitutional protection against governmental interference with the freedoms of speech, press, assembly, and *religion or a guarantee of the separation of church and state, the First Amendment is one of the nation’s fundamental normative and cultural symbols. It reflects vital attributes of the American character and is the cornerstone of the nation’s liberty. The First Amendment is known and cherished by virtually all citizens, who comprehend its essence even if they may not be able to recite its precise phrasing.


The First Amendment was approved by Congress during its first session in 1789 in response to concerns by anti-Federalists that the Constitution did not sufficiently protect individual liberties from federal intrusion. Rapidly ratified by the states, it became part of the Constitution in 1791 along with nine other amendments protecting personal liberties. As written, the First Amendment restrained only federal power, a limitation confirmed by U.S. Supreme Court decisions during the first half of the nineteenth century. In an era when the federal government was relatively weak, Congress enacted little legislation that infringed on personal liberties, and few cases arose under the First Amendment until the twentieth century. Since virtually every state constitution contained similar limitations upon state power similar to those (p. 345) found in the First Amendment, the *state courts were the principal protectors of basic liberties.

It was not until two decades beginning in the middle 1920s that the Supreme Court held that the various provisions of the First Amendment acted as restraints against the states pursuant to the *Fourteenth Amendment’s ban on state infringements upon liberty. Although the liberties guaranteed by the First Amendment were usually no broader and sometimes were narrower than those specified in state constitutions, the nationalization of the *Bill of Rights was profoundly important because it made the federal judiciary the arbiter of the precise scope of the liberties that states had to accord their citizens. The Supreme Court has generally interpreted the First Amendment and other provisions of the Bill of Rights more broadly than state courts have interpreted analogous provisions in their own constitutions, although by the late twentieth century, civil libertarians sometimes found state courts to be more sympathetic toward their claims.

Free Speech.

The Supreme Court first began to develop a coherent doctrine of First Amendment liberties in a series of decisions arising out of federal legislation designed to stifle opposition to American participation in *World War I. Although the Court upheld the convictions of political radicals under these statutes, the kernels of modern free speech doctrine were sown when Justices Oliver Wendell *Holmes and Louis D. *Brandeis dissented in *Abrams v. United States (1919), a decision upholding the convictions of socialists who opposed the dispatch of American troops to Russia to fight Bolsheviks. In one of his most stirring opinions, Holmes eloquently argued that a free society must be committed to the search for truth.

This need for a free people to test the truth is rooted in classical writings of Western civilization, such as John Milton’s Aeropagitica and John Stuart Mill’s On Liberty. It is closely related to the concept that free speech is vital for a democratic system of government. Another rationale for free speech is that it reflects a social commitment to the value of individual freedom and personal autonomy.

After exercising increasing scrutiny of laws that infringed upon free speech, the Court in *Brandenburg v. Ohio (1969) established the doctrine that the government may restrain only speech that is likely to incite imminent unlawful action. The First Amendment therefore protects even speech that calls for overthrow of the government or lawless action.

The government may, however, impose reasonable limitations upon the *time, place, and manner in which speech is exercised in order to protect public order and the smooth functioning of public administration. In imposing such restrictions, however, the state may not discriminate on the basis of the content of speech since such limitations would permit the state to favor one type of speech over another. Narrow exceptions are drawn for special categories of speech, particularly *obscenity and so-called “fighting words,” which could lead to public disturbances. Even in these categories, the Court has gradually expanded the scope of judicial scrutiny. For example, hecklers are generally not permitted to exert a “veto” over speech by creating a threat of violence and disorder; the state is obligated to protect, not stop, the controversial speaker.

Similarly, the Court has gradually extended the scope of protection for *commercial speech, although commercial speech still receives less protection than political speech. In particular, the state may impose sanctions against false or misleading commercial speech or commercial speech that involves an unlawful activity.

Since the 1960s, the Court also has protected symbolic speech, in which political views are expressed without words. For example, the Court overturned state and federal statutes that prohibited the burning of the American flag in *Texas v. Johnson (1989) and United States v. *Eichman (1990).

During recent years, the enactment of restrictions upon so-called *hate speech has tested the limits of First Amendment doctrine. Proponents of such laws contend that hateful speech directed against women or various minorities fails to promote First Amendment values because it instigates violence, perpetuates discrimination, and interferes with the freedom of expression of its victims. In *R.A.V. v. St. Paul (1992), the Supreme Court held that a city ordinance that prohibited words that insulted or provoked violence “on the basis of race, color, creed, religion or gender” was unconstitutional because it imposed a content-based discrimination. Lower courts have often overturned similar laws on the same grounds. In Apprendi v. New Jersey (2000), however, the Court sustained a law that permitted a state to enhance the sentence for a battery that was racially motivated.

Freedom of the Press.

*Judicial recognition that a free media is also essential to democracy has resulted in a heavy presumption against any law that restricts the gathering or publication of news. In particular, the Court in *Near v. Minnesota (1931) and *New York Times Co. v. United States (1971) made clear that the government may not issue prior restraints against publication, except when there is an imminent threat to national security. Although the press remains subject to *libel actions, the Court beginning with *New York Times v. Sullivan (1964) has constitutionalized libel law in a series of complex cases. In essence, a public (p. 346) official or public figure cannot maintain a libel action against a news organ that has not knowingly or recklessly published false information. In cases involving private persons and issues of public interest, a state may impose liability only if the news organ was negligent.


Freedom of religion and protection from an established religion, like freedom of speech and the press, helps to ensure a free flow of ideas, bolsters pluralism in a highly diverse society, and helps to prevent governmental tyranny. Although the First Amendment clearly forbids direct support for religion, the inevitable interaction between church and state prevents an absolute “wall of separation” and an excessively literal interpretation of separation can violate the free exercise clause.

In assessing establishment clause issues, *Lemon v. Kurtzman (1971) held that governmental action must have a secular legislative purpose and a primary effect of neither advancing nor inhibiting religion, and must not foster an excessive entanglement with religion. During recent years, the Court has modified the Lemon test to include consideration of whether a law constitutes an endorsement or disapproval of religion or whether the government has coerced anyone to support or participate in religious activity.

Although government clearly cannot favor any religion, problems arise when government acts to “aid” religion. Some support, such as police and fire protection, are clearly permissible. Other forms of assistance are controversial. Government aid to religiously affiliated schools has long been a special source of tension. On the controversial issue of school vouchers, the Court in *Zelman v. Simmons-Harris (2002) upheld an Ohio program that provided state funds for needy students to attend private or sectarian schools. During recent years, some justices have suggested that the Court should be more concerned with accommodating the needs of religious organizations in a neutral manner than with maintaining a strict “wall of separation” between church and state.

In assessing free exercise claims, the Court has held that the government may not impose a significant burden on religion unless it can demonstrate a compelling state interest and show that the law is narrowly tailored to achieve such an interest. In recent years, however, the Court has ruled that such *strict scrutiny does not apply to a law that is generally applicable and otherwise constitutional. Although Congress restored the strict scrutiny test in the Religious Freedom Restoration Act of 1993, the Court invalidated the statute, at least for nonfederal cases, in City of Boerne v. Flores (1997).

The idea of separation of church and state remains a potent—and controversial—principle in American society. Fearing the divisiveness that might arise from official involvement in religious affairs, the Court has generally sought to maintain a high level of separation of religion and government, while maintaining a high degree of freedom of conscience.

See also speech and the press.

Lee C. Bollinger and Geoffrey R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era (2002).

Lee C. Bollinger; revised by William G. Ross