First Amendment
Thursday, September 10, 2009 at 9:39AM The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the rights of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Before a quick analysis of the First Amendment, one interesting aspect is glaringly obvious and universally ignored by judge - it is that this Amendment is the only one that starts with "Congress shall make no law." The Amendment is applied to more than just congressional laws and includes all government action - federal, state and local. Another interesting aspect of the amendment is that none of the rights in the Amendment are absolute.
The Amendment protects six rights:
- Free exercise of religion
- Freedom from having the Government establish a religion
- Freedom of speech
- Freedom of press
- Freedom to peaceably assemble
- Freedom to petition the government
Most jurisprudence focuses on religion and speech. Freedom of speech is not absolute. The government can impose time, place and manner restrictions in order to protect a compelling state interest. Pornography is a prime example as communities can ban obscene materials based on the prevailing norms of decency in the community - and that is not much of a standard. ("I can't define pornography, but I know it when I see it." Child pornography can be banned because of the harm to consenting children, but virtual child pornography is protected under the First Amendment.
Freedom of religion has two parts - free exercise of religion and freedom from the establishment of religion. Free exercise is easier to understand as the government cannot pass laws that will prevent te free exercise of a "long standing and acceptable" religion without narrowly fulfilling a compelling State interest. The anti-establishment clause is a jumbled mess. The idea is that the government cannot take any actions that promote a religion or "coerce" individuals towards a particular religion. Once you get into the cases, this goal in practice becomes a mess - a menorah and Santa Clause are proper for a holiday display on government property but not a nativity scene; the ten commandments can de displayed in a courtroom but not on the law of the legislature. Reviewing the cases may make it clearer. I just don't get it sometimes though lots of it depends on the intent of the actions and how "secular" religious symbols have become.
Freedom of press is easier to understand with most of the cases dealing with how much access the press can have to government secrets and the courts, what standards of libel apply to the press on famous individuals, and compulsion of the press in criminal investigations to divulge source.
Assembly and petition are less fascinating.
Read a brief review of important First Amendment cases here.