“Constitutional Amendments” Series – Amendment I – “The Freedom of Speech”

Stanley Dersh citizenship poster recognizing the First Amendment, 1959. (U.S. Government Publishing Office)

Amendment One to the Constitution was ratified on December 15, 1791. It is most commonly recognized for its protection of the freedom of speech, religion, the press, and making complaints and requests to the government. The official text of the amendment is written as such:

“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.”

As was the case with the rest of the Bill of Rights, the key stipulations of the amendment were influenced in part by the various political, religious, and social elements of colonial America. The settlers living in the various colonies were from several different religious groups. The New England colonies were largely defined by Puritans and Separatists, the Southern colonies were predominantly Anglican, while Quakers, Lutherans, and some Presbyterians were largely centered in the middle colonies, especially Pennsylvania. Some Roman Catholic settlements were set up in Maryland and northern Virginia, while Jewish communities began to emerge in some select cities. At this point in colonial history, religious leaders often carried political influence rivaling that of appointed government officials. Members of the Anglican clergy, for instance, were tasked with collecting taxes from local colonists to be paid to their local governments. Those who refused to pay these taxes, as well as those who preached without a license to practice, were often criminally charged by the authorities. By the time the United States declared independence in 1776, the Continental Congress generally agreed that forcing the public to worship beneath a state-run church was antithetical to the freedoms they were working to establish. When the First Amendment to the Constitution was created, the Establishment Clause made it clear that the federal government was not allowed to create an established religion. Although this only specifically restricted the federal government, the state governments also removed the establishment of state-run religious institutions in their own constitutions by 1833, and local governments followed soon thereafter.

In addition to the government establishment of a religion, the First Amendment also protects the free expression of faith for all Americans. Aside from hailing from different religious backgrounds, some of the colonists had also fled to the New World to escape discrimination and persecution they experienced across continental Europe. The freedom of religion, composed in part by the right to free expression, had become a pivotal tenet of the American Revolution, and was extensively defended as such by James Madison, the lead author of the First Amendment. More recent Supreme Court decisions have gone back and forth regarding the protection of individuals or groups from complying with policies that may run contrary to their specific religious tenets.

The original writing of the Constitution says that Congress can not interfere with the First Amendment right to speech and the press. This has long since been interpreted by the Supreme Court to mean that all American speech can not be infringed upon by any branch or section of the federal, state, or local governments. Private organizations however, such as businesses, colleges, and religious groups, are not bound by the same Constitutional obligation. The First Amendment experienced a surge in support and expansion in the 20th century, as Gitlow v. New York (1925) determined that the freedoms promised in it are applicable to local, state, and the federal governments. Further, subsequent Supreme Court decisions from the 20th century to the early-21st century have determined that the First Amendment protects more recent and advanced forms of art and communication, including radio, film, television, video games, and the Internet. Presently, the few forms of expression that have little to no First Amendment protection include commercial advertising, defamation, obscenity, and interpersonal threats to life and limb.

The right to assembly and petition is one that has been interpreted by modern Supreme Courts as an expansion of the core freedom of expression. Assembly extends the freedom of speech to groups, rather than simply individuals as the phrasing of “freedom of speech” originally implied in the First Amendment. The right to assemble is most commonly manifested in the form of protest, which in of itself has a history as long as that of the country itself. Political party advocacy, abolition of slavery, women’s suffrage, labor movements, and civil rights organizations have all used the right to assemble in the course of their public actions. It was in 1937 that the unanimous De Jonge v. Oregon determined that the right to assembly is protected by all levels and forms of government in the United States. Petition is a right that has been considered by some to be either obsolete or irrelevant, although its historical significance is arguably the oldest in all modern legal scripture. Some of the earliest references to petitioning a government dates back to the Magna Carta in 1215, as well as the English Bill of Rights in 1689, one-hundred years before the U.S. Constitution was enacted. In American history, the Declaration of Independence made extensive note of the Continental Congress’ repeated attempts to petition King George III, only for them to be ignored. Responding to this precedent, the first few American legislatures concluded that reading and responding to petitions was a vital function of a republic. The specific purpose of the right to petition is to give political leaders a constant influx of petitions from the general public. By doing this, the framers believed that it would prevent elected officials from favoring arguments and requests from only a select few. Despite this, a gag rule on petitions was imposed after President John Quincy Adams presented petitions by slaves calling for their emancipation. The rule was considered unconstitutional and was subsequently lifted in 1844, but the right to petition has since been treated as little more than an extension of the Free Speech Clause, rather than having the specific purpose that it was meant for.

Written by Nicholas J. Dilley, Ronald Reagan Presidential Library & Museum

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