1.1 History of the First Amendment
6 min read•august 20, 2024
The , ratified in 1791, protects essential freedoms like speech and press. It emerged from Enlightenment ideas of individual liberty and limited government. Early challenges tested its scope, like the controversial .
Over time, the First Amendment's reach expanded. Key Supreme Court cases incorporated it against state governments and developed doctrines to balance free expression with other interests. Today, it shapes debates on issues from to to .
Origins of the First Amendment
- The First Amendment to the United States Constitution protects freedom of speech, religion, press, assembly, and petition, which are essential rights for journalists
- Emerged from the political philosophies of the Enlightenment era, which emphasized individual liberty and limited government power
- Influenced by the writings of , who argued for natural rights including freedom of conscience and expression
Ratification and early challenges
- The First Amendment was ratified as part of the in 1791, but its scope and application were initially limited
- Early challenges arose as the new nation grappled with balancing free expression with national security and public order
- The of 1798 tested the limits of government power to restrict speech critical of public officials
Sedition Act of 1798
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- The Sedition Act was passed by the Federalist-controlled Congress during a period of heightened tensions with France
- aimed to silence criticism from the Republican opposition, who they accused of being sympathetic to the French
- argued that the Act violated the First Amendment by punishing political speech and press
Prosecutions and expirations
- Several prominent Republican journalists and politicians were prosecuted under the Sedition Act for criticizing President John Adams and the Federalist government
- The Act expired in 1801 and was not renewed, but set a precedent for government attempts to restrict dissent in times of crisis
- The controversy over the Sedition Act helped shape early debates about the meaning and scope of the First Amendment
Incorporation of the First Amendment
Barron v Baltimore (1833)
- In this case, the Supreme Court ruled that the Bill of Rights, including the First Amendment, only applied to the federal government and not to state governments
- This meant that states could still restrict freedom of speech, press, and religion without violating the Constitution
- The decision limited the reach of the First Amendment for much of the 19th century
Gitlow v New York (1925)
- Landmark case that began the process of incorporating the First Amendment against the states through the Due Process Clause of the Fourteenth Amendment
- The Court upheld Gitlow's conviction under a state criminal anarchy law for distributing a socialist manifesto, but acknowledged that freedom of speech and press were fundamental liberties
- Opened the door for challenges to state restrictions on First Amendment rights
Near v Minnesota (1931)
- The Supreme Court struck down a Minnesota law that allowed prior restraint of "malicious, scandalous, and defamatory" publications as unconstitutional under the First and Fourteenth Amendments
- Established that prior restraint on publication is presumptively unconstitutional, except in rare cases such as national security or obscenity
- Strengthened press freedom by limiting government power to censor publications in advance
Evolving interpretations and doctrines
Clear and present danger test
- Developed by Justice Oliver Wendell Holmes in (1919) to determine when speech can be restricted
- Under this test, speech can only be punished if it creates a "clear and present danger" of bringing about substantive evils that Congress has a right to prevent
- Focused on the circumstances and context in which speech takes place, rather than its content alone
Bad tendency test
- An earlier, more restrictive test that allowed punishment of speech if it had a "bad tendency" to encourage unlawful behavior or harm public welfare
- Applied in cases like (1919) to uphold convictions for distributing anti-war leaflets
- Criticized for allowing broad suppression of unpopular or dissenting views
Preferred position doctrine
- Emerged in the 1940s as the Supreme Court began to give heightened protection to First Amendment freedoms
- Under this doctrine, freedom of speech and press are given a "preferred position" in the hierarchy of constitutional rights
- Places the burden on the government to justify restrictions on these freedoms, rather than on the individual to prove their right to express themselves
Landmark 20th century cases
Schenck v United States (1919)
- Upheld the conviction of socialist activists for distributing anti-draft leaflets during World War I under the Espionage Act
- Holmes introduced the "clear and present danger" test, but found that the leaflets posed such a danger in wartime
- Demonstrated the limits of First Amendment protection in times of national emergency
Abrams v United States (1919)
- Upheld the conviction of Russian immigrants for distributing leaflets criticizing U.S. intervention in the Russian Revolution
- Holmes dissented, arguing for a more protective "clear and present danger" standard that would allow criticism of government policies
- Revealed divisions on the Court over the scope of First Amendment rights
Whitney v California (1927)
- Upheld the conviction of a communist activist under a California criminal syndicalism law for organizing a political party
- Justice Brandeis concurred, but argued for a more speech-protective "imminent lawless action" test
- Foreshadowed the Court's eventual shift towards greater protection of political speech in the 1960s
Dennis v United States (1951)
- Upheld the conviction of Communist Party leaders under the Smith Act for advocating the overthrow of the government
- Applied a modified "clear and present danger" test that considered the gravity of the evil and its improbability
- Reflected Cold War era fears of communist subversion and the limits of First Amendment protection for radical political speech
New York Times Co. v. Sullivan (1964)
- Landmark case that established a high bar for public officials to prove libel against critics of their official conduct
- Required proof of "actual malice" - knowledge of falsity or reckless disregard for the truth - to recover damages for defamation
- Strengthened press freedom to report on public issues and criticize government officials without fear of retaliatory lawsuits
Contemporary First Amendment issues
Hate speech and fighting words
- The Supreme Court has grappled with the line between protected offensive speech and unprotected "" that incite immediate violence
- Cases like R.A.V. v. City of St. Paul (1992) and Snyder v. Phelps (2011) have struck down laws targeting hate speech as content-based restrictions
- The Court has generally protected hate speech unless it crosses the line into direct incitement or true threats
Symbolic speech and expressive conduct
- The First Amendment protects not just verbal speech but also symbolic expression and
- Cases like Texas v. Johnson (1989) have upheld the right to burn the American flag as a form of political protest
- The government can still regulate the time, place, and manner of if it has a significant non-speech justification
Campaign finance and political speech
- The Supreme Court has struggled to balance free speech rights with concerns about corruption and undue influence in campaign finance regulation
- Cases like (1976) and (2010) have struck down limits on campaign spending as unconstitutional restrictions on political speech
- Critics argue that these decisions have allowed wealthy interests to drown out other voices and undermine democratic self-government
Internet and social media regulation
- The rise of the internet and social media has raised new questions about the scope of First Amendment protection in the digital age
- Courts have grappled with issues like online hate speech, disinformation, and platform liability for user-generated content
- Cases like (2017) have recognized social media as an important forum for public discourse, while allowing some regulation of online speech to protect compelling government interests
Key Terms to Review (28)
Abrams v. United States: Abrams v. United States is a landmark Supreme Court case from 1919 that upheld the conviction of individuals for distributing anti-war pamphlets, asserting that their speech presented a clear and present danger to national security. This case is pivotal in understanding the scope of the First Amendment, particularly regarding free speech during wartime and the limits that can be imposed on dissenting opinions.
Alien and Sedition Acts: The Alien and Sedition Acts were a series of four laws enacted in 1798 during the presidency of John Adams, primarily aimed at suppressing dissent against the federal government. These acts allowed for the deportation of non-citizens deemed dangerous and criminalized making false statements against the government, which raised significant concerns about First Amendment rights and set a precedent for future conflicts between national security and free speech.
Bad tendency test: The bad tendency test is a legal standard used to determine whether speech or expression can be restricted based on its potential to incite illegal activity or cause harm. This test evaluates whether the speech in question has a tendency to produce harmful actions, even if the likelihood of such actions is not immediate or certain. Its historical significance lies in the balance it seeks to achieve between free expression and societal order.
Barron v. Baltimore: Barron v. Baltimore was a landmark Supreme Court case decided in 1833 that held the Bill of Rights, specifically the Fifth Amendment's guarantee of just compensation for property takings, did not apply to state governments. This case was significant in shaping the interpretation of the First Amendment and the application of federal protections against state actions.
Bill of Rights: The Bill of Rights is the first ten amendments to the United States Constitution, ratified in 1791, which guarantee essential rights and civil liberties to individuals. These amendments were created in response to calls for greater constitutional protection for individual liberties and have played a crucial role in shaping American democracy and legal standards regarding free expression and personal freedoms.
Buckley v. Valeo: Buckley v. Valeo is a landmark Supreme Court case from 1976 that established key rulings regarding campaign finance laws, particularly the regulation of political contributions and expenditures. This case fundamentally shaped the interpretation of the First Amendment, asserting that while contributions to political campaigns could be limited to prevent corruption, independent expenditures by individuals and groups could not be restricted due to their protected status as free speech.
Campaign finance: Campaign finance refers to the funding that political candidates use to promote their campaigns for public office. It encompasses all monetary contributions and expenditures related to campaigning, including donations from individuals, organizations, and political action committees (PACs). This funding is crucial in shaping electoral outcomes and is closely tied to discussions about the First Amendment, particularly regarding free speech and the regulation of political spending.
Citizens United v. FEC: Citizens United v. Federal Election Commission is a landmark Supreme Court case decided in 2010 that ruled corporations and unions can spend unlimited amounts of money on political campaigns, under the First Amendment's protection of free speech. This decision significantly changed the landscape of political advertising and campaign financing, asserting that independent expenditures by these entities do not corrupt or create a quid pro quo relationship with candidates.
Clear and present danger test: The clear and present danger test is a legal standard used to determine when speech can be limited or restricted under the First Amendment. This test evaluates whether the speech in question poses a significant and immediate threat to public safety or national security, allowing for restrictions when such danger is present. The concept emerged from early 20th-century court cases that sought to balance free expression with societal protection.
Dennis v. United States: Dennis v. United States was a landmark Supreme Court case in 1951 that dealt with the balance between free speech and national security. The Court upheld the convictions of members of the Communist Party who were accused of conspiring to advocate the overthrow of the U.S. government, marking a significant moment in the history of First Amendment jurisprudence and the regulation of political speech during the Cold War era.
Expressive conduct: Expressive conduct refers to actions that communicate a message or idea, which can be protected under the First Amendment as a form of speech. This concept emphasizes that not only spoken or written words but also physical actions can convey opinions and beliefs. Understanding expressive conduct is crucial because it helps clarify the boundaries of free speech and the types of expression that are granted protection under the law.
Federalists: Federalists were supporters of the proposed Constitution of the United States in the late 18th century, advocating for a strong central government to maintain order and unify the states. Their influence played a crucial role in shaping the fundamental principles of American governance, particularly concerning the balance of power between federal and state authorities.
Fighting words: Fighting words are a legal term used to describe speech that incites immediate violence or disorder. This type of speech is not protected under the First Amendment because it is deemed to provoke a violent reaction from the listener, disrupting public peace and order. The concept originates from the broader discussions around free speech, where certain expressions can cross the line from protected speech to unprotected, particularly when they target individuals in a hostile manner.
First Amendment: The First Amendment is a part of the United States Constitution that protects several fundamental rights, including freedom of speech, religion, press, assembly, and petition. It is crucial in maintaining a democratic society by ensuring that citizens can express their thoughts without fear of government censorship or punishment, and it intersects with various issues such as journalism rights, political discourse, and individual privacy.
Gitlow v. New York: Gitlow v. New York is a landmark Supreme Court case from 1925 that established the principle of selective incorporation, applying the First Amendment's free speech protections to state governments through the Fourteenth Amendment. The case arose when Benjamin Gitlow was arrested for distributing a socialist manifesto that called for the violent overthrow of the government, leading to questions about the limits of free speech and the power of states to restrict it. This decision marked a significant moment in the history of the First Amendment, as it expanded its protections beyond just federal jurisdiction.
Hate Speech: Hate speech refers to any communication that belittles or discriminates against individuals or groups based on attributes such as race, religion, ethnicity, sexual orientation, disability, or gender. This term is crucial in understanding the balance between free expression and the protection of vulnerable communities, especially within legal frameworks and online platforms that seek to manage civil discourse.
Internet regulation: Internet regulation refers to the legal and policy frameworks that govern the use, access, and management of the internet. This encompasses laws, guidelines, and standards designed to protect users, ensure fair competition, and address issues like copyright infringement and privacy violations. The historical context of the First Amendment significantly impacts how internet regulation is approached, as it raises questions about free speech, censorship, and the balance between individual rights and societal interests.
John Locke: John Locke was a 17th-century English philosopher known for his influential ideas on liberalism, particularly regarding individual rights and the social contract. His concepts about the protection of life, liberty, and property laid the groundwork for later democratic principles and heavily influenced the framers of the U.S. Constitution and the First Amendment.
Near v. Minnesota: Near v. Minnesota is a landmark U.S. Supreme Court case decided in 1931 that established the principle of prior restraint, affirming that the government cannot censor or prohibit publication in advance, except in extraordinary circumstances. This case is crucial in understanding the First Amendment's protection of freedom of the press, as it set a precedent that limits governmental power to suppress expression even when the content may be considered offensive or harmful.
New York Times Co. v. Sullivan: New York Times Co. v. Sullivan is a landmark Supreme Court case from 1964 that established the actual malice standard for defamation cases involving public figures. The ruling emphasized the importance of free speech and press freedom, allowing for greater criticism of public officials while also recognizing the need to protect individuals from false statements that could harm their reputations.
Packingham v. North Carolina: Packingham v. North Carolina is a landmark Supreme Court case decided in 2017 that addressed the constitutionality of a North Carolina law prohibiting registered sex offenders from accessing social media platforms. The case highlighted the importance of free speech in the digital age and reaffirmed the principles of the First Amendment, emphasizing that social media serves as a vital public forum for communication and expression.
Preferred Position Doctrine: The preferred position doctrine is a legal principle that asserts certain constitutional rights, particularly those related to free speech and press, deserve a higher level of protection compared to other rights. This doctrine is rooted in the idea that free expression is essential for democracy and should not be easily overridden by government interests or restrictions. By establishing this preference, courts recognize that the exercise of free speech is crucial for the functioning of a democratic society.
Republicans: Republicans are members or supporters of the Republican Party, one of the two major political parties in the United States, known for its conservative stance on many issues. The party has historically emphasized limited government, individual liberties, and free-market economics, influencing the political landscape significantly since its founding in the mid-19th century. The actions and beliefs of republicans have shaped debates around freedom of speech and the interpretation of the First Amendment.
Schenck v. United States: Schenck v. United States is a landmark Supreme Court case decided in 1919 that established the 'clear and present danger' test for limiting free speech under the First Amendment. The case involved Charles Schenck, who distributed leaflets urging resistance to the draft during World War I, and it raised significant questions about the balance between free expression and national security during wartime.
Sedition Act of 1798: The Sedition Act of 1798 was a federal law that made it a crime to publish false, scandalous, or malicious writings against the government or its officials. This act was part of a series of laws known as the Alien and Sedition Acts, which were enacted during a time of political tension between the Federalists and Democratic-Republicans, reflecting early debates on the limits of free speech under the First Amendment.
Social media regulation: Social media regulation refers to the set of laws, policies, and guidelines governing the use of social media platforms to ensure that they operate within legal and ethical boundaries. This includes monitoring content, protecting user privacy, combating misinformation, and ensuring the accountability of platform operators. The historical context of the First Amendment shapes these regulations, balancing free speech rights with the need for responsible communication in the digital age.
Symbolic speech: Symbolic speech refers to nonverbal communication that conveys a specific message or idea, often through actions, gestures, or symbols rather than words. This form of expression plays a vital role in the First Amendment's protection of free speech, as it encompasses a wide array of expressive activities that contribute to public discourse and political protest. Understanding symbolic speech highlights the importance of protecting diverse forms of expression under the law, which reflects societal values and individual rights.
Whitney v. California: Whitney v. California is a landmark Supreme Court case decided in 1927 that addressed the limits of free speech under the First Amendment. The case involved Anita Whitney, who was convicted for her association with the Communist Labor Party, which was accused of advocating for violent overthrow of the government. This case is significant as it illustrates the tension between free expression and national security, influencing the development of First Amendment jurisprudence.