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The first amendment: a user's guide the most famous words in the constitution protect a host of rights for Americans--and still spur debate after 215 years.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise there of; or abridging the freedom of speech, or of the press; or the right of the people peacebly to assemble, and to petition the Government for a redress of grievances.


Do you have the right to burn an American flag? To spread lies about a rival classmate? To say a prayer in school? To jokingly shout "fire!" in a crowded movie theater?

Answers to these and many other real-life questions can be found in the First Amendment. Though only 45 words long, the First Amendment broadly protects religious liberty, free speech, a free press, and the right to hold protests and complain to the government. That simple catalogue of protections is perhaps America's most distinctive contribution to the cause of freedom around the world.

And yet, 215 years after its incorporation into the Constitution (see Times Past, p. 24), we're still debating what the First Amendment means in day-to-day life, and what is and isn't someone's "First Amendment right."

One important reason is that many of its key phrases are very general, and therefore open to interpretation. Another is that the world in 2006 is very different from the world in 1791, so the boundaries of the First Amendment are continually being tested. For instance, the courts have begun to grapple with whether free-speech rights apply in the virtual world of cyberspace.

Every time the Supreme Court rules on a First Amendment case, it further defines what rights the Amendment does--and doesn't--protect. Here then is an overview of what the Court has said the five parts of the Amendment mean, and some of the issues that are still being debated.

THE GOVERNMENT CANNOT ESTABLISH A STATE RELIGION, or favor one religion over another. Nor can it generally stop people from worshipping as they see fit. But the idea of "separation of church and state" (a phrase not in the Constitution) and the role of religion in public life are still intensely debated: Conservatives often argue that the First Amendment protects freedom of religion, not freedom from religion; liberals often say that the best way to protect religious freedom is to minimize its role in public life.

In 1962, the Supreme Court said that public schools cannot sponsor prayers, and in 2000 it extended that ruling to student-led prayers at school football games. (The ruling is generally interpreted to mean that students can pray among themselves, as long as school officials aren't involved.)

The Court has given mixed messages about religious symbols on public property: Last year, it ruled that a Ten Commandments monument on the grounds of the Texas State Capitol could remain because it had been on display for many years with little controversy.

But on the same day, the Court also ruled that copies of the Commandments recently hung in two Kentucky courthouses were unconstitutional because they were intended to advance a modern religious agenda.

THE SPEECH CLAUSE protects almost all political and artistic expression. Americans are free to criticize the government, and even burn the American flag as a political, protest. Artists may create works that people find offensive, and cartoonists may mock religious and other targets. The Supreme Court has also said that the government cannot bar the sale of most pornography (child pornography is one exception) to adults.

But there are limits to free speech. As Supreme Court Justice Oliver Wendell. Holmes wrote in 1919, you do not have a First Amendment right to falsely shout "fire!" in a crowded theater. Inciting people to violence is not constitutionally protected, and neither is making knowingly false or slanderous statements about people. (To slander someone is to smear their reputation.)

In some cases the Supreme Court has had to balance the right of free speech with its consequences. In 2003, for example, it ruled that states can prohibit cross burning, long a symbol of racial hatred, but only when it is meant as a true threat rather than as an abstract statement.

There have been efforts over the years to amend the Constitution to prohibit burning the American flag. The most recent attempt, in June, failed in the Senate by one vote.

IN 1971, PRESIDENT RICHARD M. NIXON'S ADMINISTRATION unsuccessfully tried to stop The New York Times from publishing a classified history of the Vietnam War known as the Pentagon Papers. In the process, the Supreme Court established that the First Amendment prohibits government censorship of the press in almost every situation.

The First Amendment also protects press freedoms by making it exceptionally difficult for government officials and other public figures to win libel suits. (Libel is the publication of knowingly false statements that injure a person's reputation, the written form of slander.) If it were easy to sue for libel, the Supreme Court has reasoned, public figures could use lawsuits to keep the press from aggressively reporting the news.

But the First Amendment offers the press (and the public) only limited rights of access to government information, especially in cases where the information is about private individuals or matters of national security.

In addition, as the recent jailing of Times reporter Judith Miller demonstrated, the courts have ruled that the First Amendment does not give reporters a right to protect their confidential sources, although most states have adopted their own "shield laws."

BECAUSE IT INVOLVES both speech and conduct, the Supreme Court has said that the right of assembly does not "afford the same kind of freedom" as "pure speech." So while the government can't ban protests entirely, it can regulate their "time, place and manner."

For example, the police could prohibit opponents, or supporters, of the war in Iraq from demonstrating on the White House lawn or the steps of City Hall, as long as they are given the opportunity to demonstrate in a public location elsewhere.

Freedom of assembly has also been interpreted to protect the freedom of association, which is why private clubs and organizations are not covered by civil rights laws and can exclude whomever they like. That includes the Boy Scouts, who have the right to expel gay scoutmasters, according to a 2000 Supreme Court ruling.

Similarly, the Augusta Country Club in Georgia--home of the Masters Golf Tournament--seems to be on firm legal ground in its refusal to admit women as members, despite protests from women's rights groups.

"... and to petition the Government for a redress of grievances."

THE RIGHT TO COMPLAIN to the authorities has an illustrious history in America--the Declaration of Independence was, after all, mostly a list of complaints about British rule. Indeed, this may be the least debated of First Amendment rights, and it has not given rise to much debate lately.

Adam Liptak is national legal correspondent for The New York Times.


After 215 years, the First Amendment still plays a vital role in day-to-day life in the U.S., guaranteeing many of the rights Americans take for granted (or may not even be aware of). The precise meaning of those 45 potent words continues to evolve with every Supreme Court decision in which the Amendment is invoked.


* Write "First Amendment Rights" on the board. Can anyone identify any rights protected by the First Amendment?


* Ask students to debate the First Amendment's safeguards for the press. Should the media be free to print or broadcast anything that is not false or libelous? Is there a danger that government might classify materials to hide its own errors?


* The Supreme Court has ruled that the free speech clause protects the right of political candidates to spend as much of their own money as they want on their campaigns. Have students write brief essays defending this principle or arguing that having no spending limits curtails the free speech rights of less wealthy candidates.


* Why do you agree or disagree with the ban on organized school prayer? Does allowing students to pray on their own at school safeguard everyone's rights?


* Have students suggest in an essay how life might be different without the First Amendment.


[right arrow] The 1798 Sedition Act criminalized "false, scandalous, and malicious writing" about the government. Twenty-five men, mostly newspaper editors, were arrested and their newspapers shut down under the law, which expired in 1800.

WEB WATCH News about current First Amendment issues, from Vanderbilt University.

1. Briefly explain what limits government can, and cannot, place on protests and demonstrations.

2. Which of the following is not protected by the First Amendment?

a harsh criticism of government policies.

b knowingly making a false or slanderous statement about a person.

c mocking religion.

d public-school students praying among themselves, as long as school, officials are not involved.

3. The rote of religion in public life is a hotly debated topic in the United States. Generally speaking, conservatives say the First Amendment protects freedom of religion, not freedom from religion, white liberals say that

a government should have a greater influence in religious affairs.

b religious institutions should pay taxes.

c there is no rote for religion in America.

d the best way to protect religious freedom is to minimize its role in public life.

4. Most experts on the First Amendment would agree with art of the following except

a Free speech extends even to acts most Americans would not support, including burning the flag.

b In most cases, government cannot censor the press.

c Artists may not create works that a majority of Americans would find offensive.

d Courts have begun to grapple with the issue of free speech in cyberspace.

5. Under what circumstances would it be legal to bar people from an organization because of their gender or race?


1. Civil liberties groups support the rights of racial and religious bigots to espouse their beliefs in public. Their reasoning is that protecting hateful. speech is as important as protecting speech that most people agree with. Do you agree?

2. Do you think reporters should be able to protect the identity of their confidential sources? Explain your answer.


1. The government may. regulate the time, place, and manner of protests. (Similar wording is acceptable.)

2. [b] knowingly making a false or slanderous statement about a person.

3. [d] the best way to protect religious freedom is to minimize its role in public life.

4. [c] Artists may not create works that a majority of Americans would find offensive.

5. [c] Private organizations may exclude whomever they like. (Similar wording is acceptable.
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Article Details
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Author:Liptak, Adam
Publication:New York Times Upfront
Geographic Code:1USA
Date:Oct 9, 2006
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