Reflections on the First Amendment

The First Amendment is a remarkably brief addition to the U. S. Constitution. As brief as it is the amendment is vitally important to the survival of the American experiment in democracy. Far from settled, the interpretation of this amendment goes on in perpetuity. As culture and society change, so too do the first amendment issues the court must face. The arguments and decisions in these cases are the very mechanisms of democracy. Each case before the court has specific plaintiffs and defendants. It might be an individual against a local company; or maybe a school against a local school board.

Whatever the case may be, the decisions in these cases affect much more than just the people involved in the case. Past, present and future first amendment cases effectively chart the course of democracy. That, in turn, affects the lives of every American. The First Amendment: Rights and Responsibilities At the time of its writing the First Amendment to the United States Constitution was a radical step in the development of democracy. It was a strong statement of individual rights and an equally strong statement limiting governmental power. The amendment was both brief and vaguely written.

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The lack of specificity within the document was entirely intentional. The writers knew that new issues would always arise. Ultimately, the Supreme Court would be given the duty of interpreting the amendment, in specificity, for each successive generation of Americans. Four main precepts – freedom of speech, freedom of religion, freedom of the press and freedom of assembly – comprise the focus of the amendment. From the First Amendment to the Constitution: Congress shall make no law respecting an establishment of religion… or abridging the freedom of speech; or of the press; or the right of people o peaceably assemble… (Finkelman, 2003)

The amendment would appear to have many holes. This is where the Supreme Court of the United States often steps in. How much freedom? What happens when one freedom conflicts with the other? Under what circumstances can freedom be restricted? These are just a few of the questions the court must grapple with every day. There are an unlimited number of situations in which the freedoms come into play. In recent years technological advances and new media have given rise to a great many cases without substantial judicial precedent.

The first amendment only states that “congress” cannot make laws that violate these four basic rights. Through the process of government and judicial action the reach of the amendment has been increased. Its principals now apply to all state and local government and, to a great extent, the actions of private businesses. Freedom of Religion In maintaining freedom of religion the Supreme Court is often forced to resolve issues where religious practices conflict with secular law. One such case, Reynolds v. Utah, was heard in 1874. Prior to this act, lawmakers passed the Morrill Act.

This act outlawed the practice of polygamy in the United States. A challenge to that law came when polygamist George Reynolds was arrested, tried and convicted. Reynolds appealed his case on first amendment grounds. His claim was that the Morrill Act violated his first amendment right to practice his religion as he saw fit. In its decision the court “found that laws banning polygamy were constitutional. They did not violate the Mormons right to free exercise of their religion” (Brannen, 2001). The effect of Supreme Court decisions can be profound.

In this case the Mormons were more or less forced to change the tenets of their religion. Soon after this decision, most Mormons abandoned polygamy and the church itself outlawed it. As a result of these changes Utah was granted statehood. Cultural change is never that simple, however. Despite the official position of the Mormon Church against polygamy a dedicated group of practitioners continue to challenge the system. The courts refusal to hear most of their first amendment-based cases have effectively made the Morrill Act settled law. Had the court ruled differently the societal effects could have been profound.

The Morrill Act would have been struck down. It is likely Utah would have become a haven for polygamist sects. In addition, nothing would have prevented the establishment of polygamist sects outside Utah. These groups could, potentially, have grown large enough to have political influence. The definition of marriage could have been expanded and the general progress on civil rights for women might have been slowed. Freedom of religion cases are always difficult to decide. The country was founded on the premise that people should be able to choose and practice any religion as they saw fit.

Many of the early European colonists came to America specifically for this reason. The Puritans, for example, fled discrimination in England. They relocated in Holland and other European countries that were somewhat less hostile to their beliefs. In America they saw an opportunity to practice their faith away from the dictatorial hands of European kingdoms. The Puritans were devoutly Christian. They tried aggressively to convert the Native Americans. They were not necessarily welcoming of other faiths. Still, the Puritans and the other early colonists realized that establishing an official state religion would do more harm than good.

The difficulty in deciding these cases comes when expressions of religious freedom come into conflict with others’ rights. The court has made many rulings protecting religious freedom. Exceptions have been made when this practice is a clear violation of law, or when it affects particularly vulnerable victims like young children. Freedom of Speech Freedom of speech is a vital part of a democratic government. Citizens of the early American colonies were particularly sensitive to government control of speech. It was speech that launched the revolution for independence from England.

Many of the early colonists had come from countries where the government exerted ironfisted control over protest and printed materials that were critical of the government. The case of the United States v. Eichman challenged the extent of that right. In an era when the American flag was as popular a symbol as it ever has been the issue of flag burning was addressed by the U. S. Congress. In 1989 Congress passed the Flag Protection Act in an attempt to end flag burning as a protected form of protest. Soon after, the law met its first judicial challenge.

Shawn Eichman, in a preplanned effort to challenge the constitutionality of the act, burned a U. S. flag on the steps of the U. S. Capitol. After authorities arrived to stop the protest the matter entered the judicial system. In the Supreme Court, the justices had to rule on what is a very emotional issue for many Americans. Going against the tide of public opinion the court ruled 5-4 that the Flag Protection Act was indeed unconstitutional. From the statement for the majority; “punishing desecration of the flag dilutes the very freedom that makes it so revered” (Finkelman, 2003).

The decision also addressed the premise that “Congress could do what the states could not” (Finkelman, 2003). That proposition was rejected entirely. Many first-amendment based cases have revolved around freedom of speech and expression in the context of the public school system. Conflicts often arise between educators, parents and school boards about the classroom usage of materials some find objectionable. Many of these and other first amendment cases are decided at the state level. Only a small minority of cases actually reach the Supreme Court. One such case, Todd v. Rochester, reached the Michigan Supreme Court in 1972.

Local officials had banned the film Slaughterhouse-Five from school libraries the previous year. Officials and some parents feared the influence of the film, which states controversial views on government, war and religion. After a teacher attempted to use the film in defiance of the ban, the matter had to be litigated. The Supreme Court ruled that the ban was unconstitutional. The court r4easoned that if the works of Machiavelli, Lenin and Joseph McCarthy were in the library, then why not Slaughterhouse-Five? In sum the students are “free to make of Slaughterhouse-Five what they will” (American Library Association, 2008).

An important qualification to the free speech doctrine was issued in 1969. In the case of Brandenburg v. Ohio the court addressed instances when first amendment rights and public safety come into conflict. In this case, the court left room for states to restrict speech but only under narrowly defined circumstances. The state must be able to prove that a “clear and present danger” to the public is apparent or; that the speech in question is likely to produce “imminent lawless action” (American Library Association, 2008). That same year another case reinforced the speech rights of students.

In Tinker v. Des Moines Independent Community School District, the issue was whether students had the right to protest speech within the school and to what extent. The school involved had attempted to take punitive action against a student for wearing clothing designed to protest the Vietnam War. Once again, the court limited the right of schools to prevent the exercise of free speech rights. Preventing symbolic expressions of protest was only constitutional when the school could prove that it harmed other students and/or interfered in a substantial way with the educational process.

The court concluded that students “do not shed their constitutional rights at the school gate” (American Library Association, 2008). With the proliferation of modern technology a vast new area of free speech litigation has been opened. In many of these cases clear judicial precedent has yet to be set. In cases involving internet obscenity, for example, the court can only rely tangentially on prior obscenity rulings. The court has determined that obscenity is not deserving of first amendment protections. From that stance, the issue then becomes much more complex and vague.

Not only must the court determine what “obscenity” is in each individual case; it must also make these decisions in the context of new, emerging forms of communication and media. Past cases highlight the difficulty of regulating obscene speech. In one case a city tried to prevent the showing of a movie containing nudity at a drive-in theater because the screen was visible from a nearby public street. In another case the Federal Communications Commission (FCC) tried to ban “indecent but not obscene telephone messages” (FindLaw, 2008).

The jurists may have been sympathetic on a personal level, but ruled both bans unconstitutional none the less. These cases give a hint of the variety and complexity of cases to come in the information age. The internet is a haven for free political discussion and dissent. It is also a haven for libelous speech, pornography and hate speech. In the years to come the court will have to wade through this vast frontier. It will have to determine what is and is not protected speech in a dizzying array of communication formats. Freedom of the Press The press has always served a vital role in America as a check on government power.

Many governmental officials and entities instinctively try to muzzle the press. The Supreme Court must find a middle ground between these conflicting organizations; but more importantly it must protect the crucial right of freedom of the press. This freedom has been the subject of many cases before the court. In Branzburg v. Hayes (1969), the court evaluated the individual reporter’s right to keep his sources private from the government. A Louisville, KY reporter named Paul Branzburg refused to testify before a Grand Jury because it would have caused him to reveal a source and his alleged criminal behavior.

The courts reason for rejecting the reporters claim was a basic misinterpretation of the first amendment. The reporter had not been stopped from printing the story. As the court put it; “The main reason for freedom of the press is to prevent government from controlling what is published… [testifying] does not stop them prom printing their stories” (Brannen, 2001). Reporters still assert this claim to confidentiality of sources, at times being sent to jail for their refusal to cooperate with Grand Juries. A seminal event in the development of freedom of the press occurred in 1971. The case of New York Times Co. V.

United States, also known as the “Pentagon Papers” case, occurred in a vacuum of political turmoil. The Vietnam War was still raging on despite the promises of President Richard M. Nixon to bring it to an end. Americans were also beginning to question the behind the scenes activities of the administration. The New York Times wanted to publish documents is obtained that would be damaging to Nixon and his conduct of the war. The administration tried to prevent this. They claimed that the document had been obtained illegally and that their release would threaten national security and objectives. The court ruled in favor of the Times.

In its rebuke of the Nixon administrations efforts it wrote that “any prior restraint on publication bear(s) a heavy presumption against its constitutional validity… the government has failed to meet its heavy burden” (Goodale, 1997). Analysis and Conclusion There will always be new issues to confront and old issues to revisit regarding the first amendment. This would not surprise the original writers of the amendment. The Constitution and the Bill of Rights were never written to be rigidly specific. In effect, the writers set up a system in which we would be perpetually engaged in the process of democracy.

That was the only way to ensure its long-term survival. As the final arbiter of law in the United States, the Supreme Court has a tremendous power to chart the course of American society. That society, in turn, has an inevitable influence on the jurists of each generation. This is why judicial precedent is important. It reins in the passions of individual jurists and provides a linchpin for making well-reasoned decisions that protect first amendment rights. The rights to free religion, free speech and free press are challenged on a daily basis.

Sometimes the majority of the public is in favor of restricting one or more of these rights. It is during these times that the Supreme Court does its most important work. Countless times it has “protected us from ourselves” by reinforcing these rights against the tide of popular opinion. In the future first amendment issues promise to be even more numerous and complex. The Supreme Court will be relied upon to make decisions that balance the needs of individuals, governments and societies. In the first amendment they have a brief but powerful and flexible guideline for making these important decisions.