First Amendment/Civil Liberties

  • Protected
    • Political, Symbolic
    • Right not to speak, Boycotts
  • Unprotected
    • Incitement, Fighting Words, Obscenity
  • No prior restraint
  • Reporter’s privilege
  • Exceptions
    • National security
    • Defamation
    • Compelling state interest
  • No content/viewpoint-based restrictions
  • Content-neutral time, place & manner restrictions on assembly
  • Gag Rule of Anti-Slavery Petitions (1836-1844)
  • Protects religious liberty & practice
    • Restrictions neutral with compelling interest
  • Ensures separation of church & state

Key Concepts

Fundamental Freedoms

Drafted by James Madison and ratified in 1791, the Bill of Rights begins with the First Amendment. Informed by the Magna Carta (1215), English Bill of Rights (1689), and Virginia Declaration of Rights (1776), and dedicated to religious freedom, tolerance, and disestablishment from government, Madison crafted an amendment to the Constitution that encapsulated fundamental freedoms and values that would define the United States and prove essential to American democracy and identity.

  • Freedom of speech: This freedom is not only an essential part of a person’s freedom of expression, identity, individuality, and worth, but also is vital to self-government in a democracy. Protected speech under the First Amendment includes political, social, commercial, symbolic, and hate speech, as well as boycotts, the right to receive information/hear, and the right not to be compelled to speak.  
  • Freedom of press: This freedom is also vital to self-government in a democracy, as a free press is considered the “fourth branch of government,” which keeps the public informed and provides oversight and a “check” on federal and state/local government power. The press is not an arm of the government, but rather holds it to account.
  • Freedom of assembly/right to petition: This freedom and right are focused on public participation and communication, where people are free to gather and associate with each other, engage in expressive activities, and communicate directly with their representatives.
  • Free Exercise of Religion/Establishment Clause: This freedom reflects the founding of the nation by religious dissidents and as a refuge for those escaping religious persecution, and the importance of religious tolerance as well as the separation of church and state. Reinforcing this value of tolerance and separation, Article VI, cl. 3 of the Constitution states that public officials are bound by an oath or affirmation to support the Constitution, but are not required to take a religious test as a qualification to hold public office. 

Judicial Interpretation & Incorporation

There are no definitions for the fundamental freedoms included in the First Amendment or guidance for determining what is protected under the First Amendment and what is unprotected and subject to restriction by the government. There is no mention of exceptions or various circumstances where limitations or restrictions on protected freedoms would be necessary. 

  • Interpretation & Tests: The Supreme Court has interpreted the meaning of the First Amendment and established various tests that have evolved over time to determine the confines of the First Amendment and what restrictions are constitutional. Each freedom under the First Amendment has its own legal precedent and test.
  • Incorporation: The language in the First Amendment includes a prohibition against Congress, (“Congress shall make no law…”), and does not mention the states or state laws. Eventually, the First Amendment would be applied to the states through a process called “incorporation,” where a provision in the Bill of Rights was incorporated through the Due Process Clause in the 14th Amendment to apply to the states. The incorporation of the First Amendment began with freedom of speech and press in Gitlow v. New York (1925), free exercise of religion in Hamilton v. Regents of U.C. (1934), freedom of assembly/right of petition in De Jonge v. Oregon (1937), and the Establishment Clause in Everson v. Board of Ed. (1947).

New York State Focus

Deeper Dive

From the Annenberg Classroom. This video examines the First Amendment rights of students through a discussion of freedom of speech in public schools and the landmark Supreme Court decision in Tinker v. Des Moines (1969), as well as Mahanoy Area School District v. B.L. (2021), concerning off-campus speech of a Snapchatting cheerleader. Here is a helpful lesson plan on Tinker v. Des Moines from the U.S. Courts, which teachers could use separately or in conjunction with this video.

From the Annenberg Classroom. This video discusses the First Amendment right of assembly and examines the Supreme Court decision in National Socialist Party of America v. Village of Skokie (1977), concerning neo-Nazis planning to march in a predominantly Jewish community. Here is a lesson plan to accompany this video.

From the Annenberg Classroom. This video explores the importance of freedom of press under the First Amendment and its history in the United States, and includes a discussion of the landmark Supreme Court decision in New York Times Co. v. United States (1971), the Pentagon Papers case, which held the government’s prior restraint of the press was unconstitutional. Here is a lesson plan to accompany this video.

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