A Dive into the 1st Amendment
Congress shall make no law respecting an established religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.
The First Amendment was passed into law in 1789 and is one of 10 amendments forming the Bill of Rights. It appears relatively easy to understand, being short and to the point: an offering of basic protections for religions, speech, and protests. A deeper analysis of the amendment, its clauses and subsequent cases filed reveal that the First Amendment has had the greatest influence in establishing our contemporary society.
Morse v. Frederick (2007) is one of the most recent cases invoking the First Amendment. A student brought a banner that read “Bong Hits 4 Jesus” to a public school-sponsored event. The principal took away the banner on grounds that it violated school policy by endorsing illegal drug use. The student sued on the grounds it violated the First Amendment’s statement on freedom of speech. The Court sided with the school, as students do not get to experience the full extent of rights, as the school’s job is to teach and guide students and this takes precedent over student’s rights as the actions they take may not be fully understood by the student.
Tinker v. Des Moines (1969) is one of the most memorable and important Supreme Court cases involving the First Amendment. A group of students decided to show their support for the truce in Vietnam by wearing arm bands and fasting. The school developed a policy that would result in the removal of the arm bands, and the suspension of students if they failed to do so. The students sued the school on the basis of a violation of their freedom of expression. The Court sided with the students in saying that when they stepped on school property they did not completely lose their rights, and in fact the school had to prove the actions of the students would totally disrupt the operations of the school for the anti-arm band policy to be acceptable.
The First Amendment provides for two clauses, the Establishment Clause and the Free Exercise Clause. The Establishment Clause is what prevents the government from forming an official state religion. Note the language “no law respecting an established religion”, indicating that not only can the government not create an established religion, but it also can not respect an established religion. This means if anything were to be proposed, or every state made the same state law establishing religion, the federal government would have to work to undermine this law. This is meant to establish a clear line between church and state and ensure there is no violation of either.
Engel v. Vitale (1962) looked at beginning a prayer composed by the state in public schools and ruled the requirement unconstitutional because of the Establishment Clause. In Reynolds v. United States (1879), it was found that while the government couldn’t regulate belief, it could regulate action. Thus, the government couldn’t ban religions that encourage polygamy, but it could ban polygamy because marriage is under the government’s jurisdiction. This clause has important ramifications in contemporary settings. There were two cases in the last 15 years that had similar arguments and even the same background setting, but ended very differently. Statues mimicking the original ten commandments have been popping up all over the U.S., in front of state capitols, which are supposedly secular. In McCreary County v. ACLU (2005), it was found that framed copies of the ten commandments in Kentucky courthouses were unconstitutional because they lacked a secular purpose, thus violating the Establishment Clause. In Van Orden v. Perry (2005), it was found that ten commandment statues in front of the Texas State Capitol had a secular purpose, and being placed among other statues, would not misconstrue the state breaking the church-state divide. They did not violate the Establishment Clause.
The second clause found in the First Amendment is the Free Exercise Clause, which says that all American citizens reserve the right to practice any belief. Therefore, the difference between the Establishment Clause and the Free Exercise Clause is that the Establishment Clause is to protect citizens from the government, while the Free Exercise Clause works to protect citizens from other citizens. Clearly these lines overlap, as they work in tandem to protect practitioners (non-practitioners) from the overexpansion of regulation (be it by government or other citizens).
Holt v. Hobbs (2015) declared that grooming regulations from the Department of Corrections violated an inmate’s rights to religious exercise. Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) ruled that secular aid groups cannot exclude churches as it violates the Free Exercise Clause. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) ruled that Florida ordinances addressing animal sacrifice violated the First Amendment as it was not neutral or generally applicable, as it targeted the religious practices of Santeria. Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal (2006) is a particularly interesting case because it acknowledges religious exemptions on case by case basis. In it, the court held an exemption from a ban on a hallucinogenic drug called hoasca, which is utilized by the religious group for mental concentration. In acknowledging the need for religious exemptions, some may argue that it could also lead to anarchy, as certain groups gain special privileges. On the other hand, the government could lift bans on religious drugs like hoasca, marijuana, and peyote, which could also be argued would lead to anarchy.
The Supreme Court has recently added to their fall docket a case involving the First Amendment and its Free Expression Clause. The case will delve into the rights of private companies and their ability to discriminate against customers on the basis of religious ideals based in sexual orientation. The case came about when a bakery refused to make a cake for a same-sex couple on the grounds that homosexuality violates their religious beliefs. It will be interesting to see how the Court rules and what legal justifications it utilizes. This case will reveal much about contemporary American society, as well as what lays in the future.
The First Amendment isn’t always applicable. This becomes evident in a comparison between the public and private sphere. Private actors are much harder to regulate than private actors. For example, an employee of a private company can tweet whatever they want without promised ramifications. The company has the right to discipline their employees how they see fit, but they have to be careful not to violate the Civil Rights Act or contract law. For public groups, such as the police or elected officials, the line can be harder to draw, because the determination has to come from higher powers and they have to decide if the remarks affect the individual ability to do their job. If a police officer is found to make racist comments and are subsequently fired, courts may rule with the department because racist comments can have a negative outcome on the community.
True threats are also excluded from the protection of the First Amendment. There have been multiple examples of threats made against the president. During the Vietnam War, a protester was giving an anti-war speech and said that were he drafted, his first bullet would got to LBJ. There slogan posters and various dummies depicting the lynching of Obama. The most recent involves a photo shoot Kathy Griffin did with a bloodied, severed model Trump head. These threats are relatively nonpunishable because intent has to be proven. If any of these people had meetings set up with the president and made these comments, or demonstrated these pieces, and used more violent terms, then it could be ruled a “true threat” and direct action could be taken.
Other actions that do not receive protection from the First Amendment includes hate speech (again, though, intent has to be proven), speech or actions inciting violence, statements supporting terrorism (includes both domestic and international terror groups).
The First Amendment has to be the fundamental guidelines for our contemporary society. It has shaped out understanding of law (protections of minority or even unheard of religions, for example), it has influenced societal interactions (the spread of protests, of intensive debates) and has changed societal understandings of various interacting though separate groups (like the simultaneous clinging to and abandonment of traditional religion).
