FIRST AMENDMENT

The First Amendment today protects the overlapping realms of the spirit—of belief, emotion, and reason—and of political activity against intrusion by government. The amendment directly forbids federal violation of the individual's religious liberty, freedom of expression, freedom of assembly, and associated political liberties. The amendment indirectly forbids state violation because it is held to be incorporated into the fourteenth amendment's restrictions upon the powers of the states. The body of law presently defining First Amendment liberties has been shaped not so much by the words or intent of the original sponsors as by the actors and events of much later history. The story is one of the continual expansion of individual freedom of expression, of the freedom of the press, and, until 1980, of widening separation of church and state.

The constitutional convention of 1787 saw no need to include guarantees of religious liberty, freedom of speech, or other human rights. Most of the Framers believed in some such rights but supposed that the powers proposed for the new federal government were so severely limited by specific enumeration as to leave scant opportunity for either Congress or President to threaten individual liberty. The threats would come from state law and state governments. For protection against these, the Framers looked to the constitutions of the individual states. In the struggle for ratification of the constitution, however, those who feared abuse of federal power exacted an undertaking that if the proposed Constitution were ratified by the states, the first Congress would be asked to propose amendments constituting a bill of rights. The First Amendment is thus the first and most far-reaching of the ten articles of amendment submitted by james madison, proposed by Congress, and ratified by three-quarters of the states in 1791 solely as restrictions upon the new federal government, the powers of which were already severely limited.

The assumption that the amendment would have only a narrow function made it possible to ignore fundamental differences that would produce deep divisions more than a century later, after the amendment had been extended to the several states. The colonists held a variety of religious beliefs, though nearly all were Christian and a majority were Protestant. Whatever the limits of their tolerance back home in their respective states where one church was often dominant, they had reason to understand that the coherence of the federal union could be fixed only if the new federal government were required to respect the free exercise of religion. The men of South Carolina with their state-established religion and of Massachusetts with religion appurtenant to their state government could therefore support a prohibition against any federalestablishment of religion shoulder to shoulder with the deist thomas jefferson and other eighteenth-century rationalists who opposed any link between church and state. Similarly, in applying roger williams's vision of "the hedge or wall of separation between the garden of the church and the wilderness of the world," there was originally no need to choose between his concept of protection for the church against the encroachments of worldly society and Jefferson's concept of protection for the state against the encroachments of religion.

The conditions and political assumptions of 1791 also made it easy to guarantee "the freedom of speech or of the press" without accepting or rejecting the Blackstonian view that these guarantees bar only licensing and other previous restraints upon publication, leaving the government free to punish seditious libels and like unlawful utterances. Because the original amendment left the states unhampered in making and applying the general body of civil and criminal law, except as the people of each state might put restrictions into its own constitution, there was no need to consider how the First Amendment would affect the law of libel and slander, the power of the judges to punish contempt of court, or the operation of laws punishing words and demonstrations carrying a threat to the public peace, order, or morality. Such questions could and would arise only after the First Amendment was extended to the states.

The fulcrum for extending the First Amendment to the states was set in place in 1868 by the adoption of the Fourteenth Amendment, which provides in part: "… nor shall any State deprive any person of life, liberty or property without due process of law."

The effects of the new amendment upon religious and political liberty and upon freedom of expression were slow to develop. As late as 1922 the Court declared in PrudentialInsurance Co. v. Cheek that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about "freedom of speech." Within another decade, however, the First Amendment's guarantee of freedom of expression had been incorporated into the Fourteenth by judicial interpretation. incorporation of the other clauses, including the prohibition against laws "respecting an establishment of religion," followed somewhat later. Today the First Amendment restricts both state and federal governments to the same extent and in the same fashion.

Yet the historic sequence is important. Many questions of First Amendment law cannot be resolved truly in terms of the original intention because the questions could not arise while the original assumption held. Resolution of the issues was thus postponed until the middle decades of the twentieth century, an era in which liberalism, secularism, and individualism dominated American jurisprudence.

Disparate strains of thought were merged even in the writing of the First Amendment. Subsequent events, including current controversies, have poured new meaning into the words, yet the juxtaposition of the key phrases still tells a good deal about the chief strains in the philosophy underpinning and binding together guarantees of several particular rights.

The Framers put first the prohibition against any law "respecting an establishment of religion or prohibiting the free exercise thereof." The sequence attests the primacy ascribed to religion. The colonists belonged to diverse churches. Many had fled to the New World to escape religious oppression. Rigid though some might be in their own orthodoxy, probably a majority rejected the imposition of belief or the use of government to stamp out heresy. Certainly, they rejected use of federal power.

It was natural for the authors of the amendment to link "the freedom of speech, or of the press" with freedom of religious belief and worship. The one church was breaking up in late sixteenth-and seventeenth-century Britain. New faiths were emerging based upon individual study of the Holy Word. The man or woman who has discovered the road to salvation has a need, even feels a duty, to bring the gospel to others. Liberty of expression benefits more than the speaker. Suppression would deny the opportunity to hear and read the word of God, and thus to discover the road to salvation. Modern legal analysis recognizes the importance of the hearers' and readers' access to information and ideas in cases in which the author's interest lacks constitutional standing or would, if alone involved, be subject to regulation. (See listeners ' rights.)

Concern for a broader spiritual liberty expanded from the religious core. The thinking man or woman, the man or woman of feeling, the novelist, the poet or dramatist, and the artist, like the evangelist, can experience no greater affront to his or her humanity than denial of freedom of expression. The hearer and reader suffer violation of their spiritual liberty if they are denied access to the ideas of others. The denial thwarts the development of the human potential, the power and responsibility of choice. Although concerned chiefly with religion, john milton stated the broader concern in Areopagitica (1644), the single most influential plea, known to the Framers, for unlicensed access to the printing press.

The Enlightenment gave the argument a broader, more rationalistic flavor. Thomas Jefferson and other children of the Enlightenment believed above all else in the power of reason, in the search for truth, in progress, and in the ultimate perfectibility of man. Freedom of inquiry and liberty of expression were deemed essential to the discovery and spread of truth, for only by the endless testing of debate could error be exposed, truth emerge, and men enjoy the opportunities for human progress.

After john stuart mill one should perhaps speak only of the ability to progress toward truth, and of the value of the process of searching. The compleat liberal posits that he has not reached, and probably can never reach, the ultimate truth. He hopes by constant search—by constant open debate, by trial and error—to do a little better. Meanwhile he supposes that the process of searching has inestimable value because the lessons of the search—the readiness to learn, the striving to understand the minds and hearts and needs of other men, the effort to weigh their interests with his own—exemplify the only foundation upon which men can live and grow together.

It was not chance that America's most eloquent spokesman for freedom of speech, oliver wendell holmes, was also a profound skeptic. Dissenting in abrams v. united states (1919), he wrote:

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

On the far side of the First Amendment's guarantee of freedom of speech and of the press one finds the political rights "peaceably to assemble, and to petition the Government for a redress of grievances." (See freedom of petition; freedom of assembly and association.) The juxtaposition recalls that freedom of speech and of the press have a political as well as a spiritual foundation; and that the First Amendment protects political activity as part of and in addition to the world of the spirit. American thought, especially in Supreme Court opinions, puts the greater emphasis on the political function of free expression. In Garrison v. Louisiana (1964), for example, the Court explained that "speech is more than self-expression; it is the essence of self-government." alexander meikle-john, perhaps the foremost American philosopher of freedom of expression, argued that whereas other constitutional guarantees are restrictions protecting the citizens against abuse of the powers delegated to government, the guarantees of freedom of speech and of the press hold an absolute, preferred position because they are measures adopted by the people as the ultimate rulers in order to retain control over the government, the people's legislative and executive agents. James Madison, the author of the First Amendment, expressed a similar thought in a speech in 1794. "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."

Despite the eloquence of Justice Holmes, most of us reject the notion that the ability of an idea to get itself accepted in free competition is the best test of its truth. Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrines gain wide public acceptance. Adolf Hitler's brutal theory of a "master race" is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some persons and extended to others. It cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same license to all others who have, but fear to lose, power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.

Constitutional law has been remarkably faithful to this philosophy in dealing with both religious and political ideas. In the prosecution of the leader of a strange religious cult for obtaining money by false pretenses, as in united states v. ballard (1963), the truth or falsity of the leader's claims of miraculous religious experiences is legally irrelevant; conviction depends upon proof that the defendant did not believe his own pretenses. Similarly, although distaste for political ideology may have influenced some of the decisions in the 1920s affirming the convictions of anarchists and communists for advocacy of the overthrow of the government by force and violence, the social, political, or religious activists seeking changes that frighten or annoy all "right-minded" people receive wide protection in their resort to the sitins, picketing, marches, mass demonstrations, coarse expletives, affronts to personal and public sensibilities, and other unorthodox vehicles that are so often their most effective means of expression. Such methods of expression may prejudice opposing public and private interests because of the time, place, or manner of communication, regardless of the content of the message; therefore, the amendment allows regulation of particular forms of expression, or of expression at a particular time or place, regardless of content, provided that the restriction protects important interests that cannot be secured by less restrictive means. The courts have typically scrutinized such restrictions, however, with an eye zealous to condemn as unconstitutional any statute or ordinance ostensibly designed to protect the public peace and order but phrased in such loose words as either to deter constitutionally protected expression or to invite discrimination by police, public prosecutors, or judges against radical "troublemakers" and other unpopular minorities. Thus, the American Nazis were secured the right to parade in uniform with swastikas in an overwhelmingly Jewish community many of whose residents had fled the Holocaust.

Distrust of official evaluation of the worth of ideas may also lie behind the decisions barring regulation of political debate in the interest of "fairness" or equality of opportunity. In buckley v. valeo (1976), holding that the freedom of speech clause bars laws restricting the dollars that may be spent in a political campaign, the Court observed: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Similarly, in miami herald v. tornillo (1974) the Court held a state law granting a political candidate a right of space in which to reply to a newspaper's attacks upon his or her record to be unconstitutional interference with the editorial freedom of the newspaper. Only in the area of broadcasting has the Court thus far recognized that realization of the ideal of free competition of ideas may be irreconcilable with total freedom from regulation in an era in which the public's chief sources of ideas and information are expensive media of mass communication, which are often under monopolistic control. Federal statutes and regulations subject radio and television broadcasters to loosely defined duties to present public issues fairly and to give a degree of access to political candidates and parties.

Although only deliberately false religious or political representations fall wholly outside the First Amendment, the law is more willing to try to separate the worthless from the valuable in the field of literature and the arts. The amendment gives no protection to "obscene" publications. For many years the definition of obscenity was broad enough to cover works containing individual words or short passages that would tend to excite lustful thoughts in a particularly susceptible person. This standard condemned Lady Chatterley's Lover, An American Tragedy, and Black Boy. From 1930 to 1973 the legal definition of obscenity was gradually narrowed so tightly that many jurists concluded that the First Amendment would protect the most prurient of matter unless it was "utterly without redeeming social value." After 1973 changes in the composition of the Court led to a somewhat less permissive formulation. A work is obscene if a person applying contemporary community standards would find that it appeals to the prurient interest; if it represents or describes ultimate sexual acts, excretory functions, or the genitals in a patently lewd or offensive manner; and if it lacks serious literary, artistic, political, or scientific value. young v. american mini theatres (1976) suggests that explicity sexual books and motion pictures, even when not obscene, may be regulated as to the places and perhaps the time and manner of their distribution in ways that are forbidden for other materials.

These exceptions from the principle that bars any branch of government, including the judiciary, from judging the value of ideas and sensations seem attributable partly to the emphasis that American law puts upon the political values of the First Amendment, partly to the diminishing but still traditional concern of government for public morals, and partly to the actual or supposed links between producers and distributors of commercial pornography and the criminal underworld.

So long as one is dealing with beliefs and expressions separable from conduct harmful to other individuals or the community, the essential unity of the philosophical core of the First Amendment makes it unnecessary to distinguish for legal purposes among religious beliefs, political ideologies, and other equally sincere convictions. In upholding the First Amendment privilege of Jehovah's Witnesses to refuse to join other school children in a daily salute to the United States flag, the Court pointedly refrained from specifying whether the privilege arose under the free exercise clause or the guarantee of freedom of speech: "… compelling the flag salute and pledge …invades the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control." (See flag salute cases.) Test oaths, like particular beliefs, cannot be required for holding public office or receiving public grants. In upholding the conviction of a Mormon for polygamy in reynolds v. united states (1879), despite his plea that the free exercise clause protected him in obeying his religious duty, the Supreme Court sought to erect this distinction between the realm of ideas and the world of material action into a constitutional principle: "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."

As the guarantees of the freedoms of speech and press and of free exercise of religion seek to bar hostile governmental intrusion from the realm of the spirit, so do modern interpretations of the establishment clause bar state sponsorship of, or material assistance to, religion. In the beginning religion and established churches were dominant forces in American life. Nearly all men and women were Christians; Protestants were predominant. In South Carolina the Constitution of 1778 declared the "Protestant religion to be the established religion of this State." Church and state were intertwined in Massachusetts. Where there was no official connection, both the laws and practices of government bore evidence of benevolent cooperation with the prevailing creeds. sunday closing laws were universal. Oaths were often required of state officials. Legislative sessions began with prayer. The crier in the United States Supreme Court still begins each session by invoking divine blessing. The coinage states, "In God We Trust." Church property was and remains exempt from taxation. As public education spread, prayers and Bible-reading became the first order of each school day.

These traditional links between church and state were challenged after incorporation of the First Amendment into the Fourteenth Amendment, not only by anticlerical secularists but also by religious minorities whose members were set apart by official involvement in religious practices and who were fearful that their isolation would hamper full assimilation into all aspects of American life and might stimulate invidious discrimination. The Supreme Court was then forced to choose among the competing strains of religious and political philosophy whose adherents had agreed only that the federal government, but not the States, should be barred from "an establishment of religion." The majority's inclination during the years 1945–1980 toward Jefferson's strongly secular, anticlerical view of the wall of separation between church and state led to two important lines of decision.

One line bars both state and federal governments from giving direct financial aid to sectarian primary and secondary schools even though the same or greater aid is given to the public schools maintained by government. The decisions leave somewhat greater latitude not only for aid to parents but also to include religious institutions in making grants for higher education. (See government aid to sectarian institutions.)

The second important line of decisions required discontinuance of the widespread and traditional practice of starting each day in the public schools with some form of religious exercise, such as saying an ecumenical prayer or reading from the Bible. The latter decisions provoked such emotional controversy that in the 1980s, more than two decades after the decisions were rendered, fundamentalist groups were actively pressing for legislation abolishing the Supreme Court's jurisdiction to enforce the establishment clause in cases involving school prayer, thus leaving interpretation of the clause to the vagaries of judges in individual states. (See religion in public schools.)

Even though the line between the realm of the spirit and the world of material conduct subject to government regulation is fundamental to the jurisprudence of the First Amendment, the simple line between belief and conduct drawn in the polygamy cases was too inflexible to survive as a complete constitutional formula. Religious duties too often conflict with the commands of civil authority. Conversely, the public has compelling interests in the world of conduct that sometimes cannot be secured without interference with the expression of ideas.

Two cases suggest the line limiting constitutional protection for religious disobedience to the commands of the state. In wisconsin v. yoder (1972) the Supreme Court held that the free exercise clause secured Amish parents the privilege of holding fourteen-and fifteen-year-old children out of high school contrary to a state compulsory attendance law but pursuant to their religious conviction that salvation requires simple life in a church community apart from the world and worldly influence. The Court's constitutional, judicial duty—the Court said—required balancing the importance of the interests served by the state law against the importance to believers of adherence to the religious practice in question. Striking such a balance, the Court held in Negre v. Larsen (1971) that a faithful Roman Catholic's belief that the "unjust" nature of the war in Vietnam required him to refuse to participate did not excuse his refusal to be inducted into the armed forces.

When belief is invoked to justify otherwise unlawful conduct, it may become significant that the First Amendment speaks of the free exercise of "religion," but not of other kinds of belief held with equal sincerity. In united states v. seeger (1965) the Court skirted establishment clause questions by refusing to make any distinction between the teachings of religion and other moral convictions for the purposes of the Selective Service Act. That act exempted from military service conscientious objectors opposed to war in any form by reason of their "religious training and belief" and defined such belief as one "in relation to a Supreme Being involving duties superior to those arising from any human relation." A majority held that, despite the references to religion and a belief in a Supreme Being, the exemption extended "to any belief that occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." In the Yoder case, on the other hand, the opinion of the Court by Chief Justice warren e. burger, calling upon the example of Henry D. Thoreau, stated that a "philosophical and personal" belief "does not rise to the demands of the Religion Clauses." Perhaps this declaration of orthodoxy puts an end to the question, but in an age of subjectivism it is likely to press for fuller debate and deliberation.

Where religious objectors seek exemption from laws of general application, both federal and state governments must walk a narrow line. On the one hand, the free execise clause may require exception. On the other hand, excepting religious groups from laws of general application may be an unconstitutional "establishment of religion." Here again the decisions call for ad hoc balancing of the individual and public interests affected by the particular legislative act.

The requirement of self-preservation exerts the strongest pressures upon government to violate the realm of the spirit by suppressing the publication of ideas and information. Here, as in other areas, judicial elaboration of the First Amendment has been increasingly favorable to freedom of expression.

The expansion of the freedom by interpretation began within a decade from ratification. william blackstone had taught that the freedoms of speech and press were freedoms from prior restraints, such as licensing, and did not bar subsequent liability or punishment for unlawful words, including seditious libels. Dispute arose when Congress enacted a Sedition Act and the Federalist party then in office prosecuted the editors of journals supporting their political opponents, the Jeffersonian Republicans, for publishing false, scandalous, and malicious writings exciting the hatred of the people. (See alien and sedition acts.) Thomas Jefferson and James Madison led the attack upon the constitutionality of the Sedition Act by drafting the virginia and kentucky resolutions declaring that the act violated the First Amendment. The lower federal courts followed the orthodox teaching of Blackstone, upheld the act, and convicted the Republican editors. Jefferson pardoned them after his election to the presidency. Still later, Congress appropriated funds to repay their fines. Events thus gave the speech and press clauses an interpretation extending the guarantees beyond mere prohibition of previous restraints. The Supreme Court subsequently ratified the teaching of history.

The modern law defining freedom of expression began to develop shortly after world war i when pacifists and socialists who made speeches and published pamphlets urging refusal to submit to conscription for the armed forces were prosecuted for such offenses as willfully obstructing the recruiting or enlistment service of the United States. In affirming the conviction in schenck v. united states (1919), Justice Holmes coined the famous clear and present danger test: "The question in every case is whether the words used are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." When Justice Holmes wrote these words, they gave little protection to propaganda held subversive by dominant opinion. Speaking or circulating a paper, the Justice held, is not protected by the First Amendment if the "tendency" of the words and the intent with which they are uttered are to produce an unlawful act. Later, after Justice Holmes's sensitivity to the dangers of prosecution for words alone had been increased by the prosecution of tiny groups of anarchists and communists for holding meetings and distributing political pamphlets in time of peace, criticizing the government, and preaching its overthrow by force and violence, he and Justice louis d. brandeis in a series of dissenting opinions tightened their definition of "clear and present danger" and laid the emotional and philosophical foundation for the next generation's expansion of the First Amendment guarantees. Justice Brandeis's eloquent opinion in whitney v. california (1927) is illustrative:

Those who won our independence by revolution were not cowards. They did not fear political liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious.… There must be the probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech and assembly.

In the 1920s a majority of the Justices consistently rejected the views expressed by Justices Holmes and Brandeis. gitlow v. new york (1925) held that (1) a state, despite the First Amendment, may punish utterances inimical to the public welfare; (2) a legislative finding that a class of utterances is inimical to the public welfare will be accepted by the Court unless the finding is arbitrary or capricious; (3) the Court could not set aside as arbitrary or capricious a legislative finding that teaching the overthrow of the government by force or violence involves danger to the peace and security of the State because the spark of the utterance "may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration"; and (4) the Court would not consider the kind or degree of evil threatened by a particular utterance if it fell within a class of utterances found by the legislature to be dangerous to the state.

Ironically, in the very years in which the Court was deferential to legislative restrictions upon radical political expression, the Court was going behind legislative judgment to invalidate minimum wage laws, the regulation of prices and other restrictions upon freedom of contract. Beginning in 1937, however, a philosophy of judicial self-restraint became dominant among the Justices. "We have returned to the original proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws," the Court declared in ferguson v. skrupa (1963). (See judicial activism and judicial restraint.)

Such sweeping denigration of judicial review put civil libertarians in a dilemma. On the one hand, the need for consistency of institutional theory cautioned against activist judicial ventures even under the First Amendment. On the other hand, self-restraint would leave much civil liberty at the mercy of executive or legislative oppression. The only logical escape was to elevate civil liberties to a "preferred position" justifying standards of judicial review stricter than those used in judging economic regulations. The dissenting opinions by Justices Holmes and Brandeis seemed to point the way. Three rationales were offered:

1. In a famous footnote in united states v. carolene products company (1938), Justice harlan fiske stone suggested that legislation restricting the dissemination of information or interfering with political activity "may be subject to more exacting judicial scrutiny … than most other types of legislation" where the legislation "restricts those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation." The rationale fails to justify strict scrutiny in cases involving religious liberty, freedom of expression in literature, entertainment, and the arts, and other nonpolitical, personal liberties.
2. "Personal liberties" deserve more stringent protection than "property rights." The rationale does not explain why holding property is not a preferred "personal" liberty.
3. Stricter review is appropriate in applying the First Amendment, and the First when incorporated into the Fourteenth, because the guarantees of the First Amendment are more specific than the general constitutional prohibitions against deprivation of life, liberty, or property without due process of law. The difference in specificity is considerable, but its relevance is less obvious. Justice hugo l. black stood almost alone in the supposition that the language of the First Amendment could be read literally. (See absolutism.) Perhaps the most that can be said is that the Bill of Rights marks particular spheres of human activity for which the Framers deemed it essential to provide judicially enforced protection against legislative and executive oppression. During the debate in Congress, James Madison observed: "If they [the Amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive.…"

At bottom all the rationales assert that the ultimate protection for minorities, for spiritual liberty, and for freedom of expression, political activity, and other personal liberties comes rightfully from the judiciary. In this realm the political process, filled with arbitrary compromises and responsive, as in some degree it must be, to short-run pressures, is deemed inadequate to enforce the long-range enduring values that often bespeak a people's aspirations instead of merely reflecting their practices.

Propelled by this judicial philosophy, the Court greatly expanded the First Amendment guarantees of freedom of expression. The Court avowedly adopted the strict Holmes-Brandeis "clear and present danger" test for judging whether prosecution for a subversive utterance is justified by its proximity to activities the government has a right to prevent. The amendment bars restrictions upon the publication of information or ideas relating to public affairs because of harm which the government asserts will result from the impact of the message unless the government shows pressing necessity to avoid an immediate public disaster. The case of the Pentagon Papers (1971) illustrates the principle. (See new york times v. united states.) A consultant to the Department of Defense, cleared for access to classified information, gave copies of highly secret papers describing military operations and decision making to newspapers for publication. The Department of Justice upon instructions from the President asked the courts to enjoin publication, making strong representations that the risks of injury to national interests included "the death of the soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate … and the prolongation of the war." All the weight of these executive representations was insufficient to induce the Court to bar disclosure.

After 1940 the preferred freedoms theory coupled with the incorporation of the First Amendment into the Fourteenth led to Supreme Court review and invalidation or modification of many familiar state statutes and well-established common law doctrines restricting or penalizing sundry forms of expression: libel and slander, contempt of court, obscenity, breach of the peace, and laws limiting access to the streets, parks, or other public places for the purposes of expression. A short reference to the law of contempt will illustrate the trend.

The interest in the impartial disposition of judicial business solely upon the evidence and arguments presented in court often conflicts with the interest in free discussion of public affairs. Newspaper editorials and like public pressures upon a judge may improperly influence or seem to influence the disposition of a pending judicial proceeding. In English and early American law such publications were enjoinable and punishable as contempt of court. Today the First Amendment is held to protect such expression. Similarly, the English law and some American decisions treated the pretrial publication of evidence as contempt of court where, as in a notorious criminal case, the publicity might reach actual or prospective jurors and serve to make it difficult to assure the accused a fair trial and a jury verdict based solely upon the evidence presented in the court room. The Supreme Court has now set its face firmly against gag orders forbidding newspapers to print or broadcast or publicize confessions or other damaging evidence before their admissibility has been determined and they have been received in court.

The heavy emphasis that constitutional law puts upon the role of the First Amendment in the operation of representative government has led some commentators to ascribe special significance to the amendment's particular mention of "the freedom of the press" in addition to the more general guarantee of "the freedom of speech." In a crowded society, newspapers, radio, and television not only are the most effective vehicles for disseminating ideas and information but also have by far the best, if not the only, adequate resources for gathering information concerning the conduct of public affairs by the vast and omnipresent agencies of government. Starting from this premise, proponents of a "structural view" of the First Amendment argue that the special functions of the "fourth estate" entitle its members to special protection. Some of the claims to exemption from laws of general applicability have been patently excessive, such as the claims to exemption from antitrust laws, labor relations laws, and wage and hour regulation. With much greater force but scarcely greater success, the media have claimed that the First Amendment protects reporters in refusal to disclose their sources or give unpublished information to a court or grand jury in compliance with the general testimonial obligation of all citizens. (See reporter ' sprivilege.) On the other hand, the near-immunity from liability for libels upon public figures which the Court has granted to the press under the First Amendment has not yet been extended by that Court to other writers and publishers.

The words of the First Amendment move from religion to speech and press and then to the purely political rights of free assembly and petition for redress of grievances. Denials of the rights of assembly and petition have been infrequent. The express mention of a "right of the people peaceably to assemble" is also taken, however, to symbolize the much broader freedom of association that the amendment is held to secure.

The freedom of association thus far held to be protected by the First Amendment, while broad, is narrower than the freedom of individuals to associate themselves for all purposes in which they may be interested, the right debated by Thomas Hobbes and Jean-Jacques Rousseau, on one side, and, on the other side, by john locke. The enactment of labor relations acts securing employees the right to form, join, and assist labor unions made it unnecessary for workers to appeal to a constitutional right of freedom of association. Only the antitrust laws barring unreasonable restraints on competition impose substantial restrictions upon business combinations. In consequence, the decisional law treats association as a necessary and therefore protected incident of other First Amendment liberties: speech, political action, and religious purposes. Associations formed to provide legal services in litigation have been treated as "political" not only in the plausible instances of suits to establish civil liberties and civil rights but also in the incongruous instances of actions for damages for personal injuries.

Legislative efforts to outlaw associations formed for religious or political purposes have been infrequent, except in the case of the Communist party. A decision in 1961 sustained the power of Congress to require the party to register and disclose its membership as a foreign-dominated organization dedicated to subversion of the government, but the sanctions directed at members, for example, denial of passports and employment in defense facilities, were held unconstitutional. Associations and their members have had more occasion to complain of coerced disclosure under disclosure laws and in legislative investigations. Prima facie the First Amendment protects privacy of association. Governmentally compelled disclosure must be justified by a showing of important public purpose. Where the unpopularity of the association makes it likely that disclosure will result in reprisals, an even stronger justification may be required. Similarly, a state must justify by a strong public purpose any interference with the conduct of a religious organization's or political party's internal affairs.

Any pressure for substantial new growth in First Amendment interpretation will probably come in three areas. First, the amendment was intended and has nearly always been construed as a prohibition against active government interference. Today government has a near-monopoly upon much information essential to informed self-government. Although freedom of information acts may at least partially satisfy the need, there is likely to be pressure to read into the First Amendment's explicit verbal barrier to abridgment affirmative governmental duties to provide access to official proceedings and even to supply otherwise inaccessible information in the government's possession.

Second, in the crowded modern world broadcasters, newspapers, and other media of mass communication dominate the dissemination of information and formation of public opinion. New technologies make prediction hazardous, but the concentration of control over the most influential media appears to be increasing. In this context the old assumption, that the widest dissemination of information and freest competition of ideas can be secured by forcing government to keep hands off, is open to doubt. Such questions as whether the First Amendment permits government regulation to secure fair access to the mass media and whether the amendment itself secures a right of access to media licensed by government may well multiply and intensify.

Third, the electoral influence of political advertising through the mass media, coupled with its high cost, gives great political power to the individuals and organizations that can raise and spend the largest sums of money in political campaigns. Even though decisions already rendered tend to accord political expenditures the same protection as speech, important future litigation over legislative power to limit the use and power of money in elections seems assured. (See campaign financing.)

The First Amendment secures the people of the United States greater freedom against governmental interference in the realms of the spirit, intellect, and political activity than exists in any other country. The future may bring shifts of boundary lines and emphasis. A threat to national survival could revive earlier restrictions. Generally speaking, however, the modern First Amendment appears to meet the nation's needs.

Archibald Cox
(1986)

(see also: Children and the First Amendment.)

Bibliography

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Cox, Archibald 1981 Freedom of Speech in the Burger Court. Cambridge, Mass.: Harvard University Press.

Emerson, Thomas I. 1970 The System of Freedom of Expression. New York: Random House.

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——1972 "No Establishment of Religion: The Original Understanding." Pages 169–224 in Judgments: Essays in American Constitutional History. Chicago: Quadrangle.

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——1964 Church and State in the United States. Rev. ed., with Leo Pfeffer. New York: Harper & Row.