The First Amendment in History
The First Amendment
"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 the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
-- Amendment One, Bill of Rights, United States Constitution
The History of the First Amendment
Thomas Jefferson once claimed, “A democracy cannot be both ignorant and free.” This was the commonly held attitude of the “enlightened” men who settled the United States. The framers of the Constitution believed that if the new U.S. citizens failed to take care to share information completely among themselves, they would be worse off than they had been as subjects of the British monarchy they fled.
The new American settlers brought with them a desire for democracy and openness. They left behind a history of tyranny and official control of information. Using this experience as their guide, the constitutional fathers wrote into their new Constitution a Bill of Rights, which contained the First Amendment.
The Bill of Rights consists of the first ten amendments, which contain procedural and substantive guarantees of individual liberties and limits upon government control and intervention.
The First Amendment, perhaps the best known of these freedoms and protections, prohibits the establishment of a state-supported church, requires the separation of church and state, and guarantees freedom of worship, of speech and the press, the rights of peaceable assembly, association and petition.
While some Supreme Court justices have declared that First Amendment freedoms are absolute or occupy a preferred position, the Court has routinely held they may be limited so as to protect the rights of others (e.g. libel, privacy), or to guard against subversion of the government and the spreading of dissension in wartime. Thus, the Court’s majority has remained firm — the First Amendment rights are not absolute.
Only two Supreme Court justices, Justice Hugo Black and Justice William O. Douglas, insisted the First Amendment rights are absolute and their dissenting opinions fell to the wayside. Most court cases involving the First Amendment involve weighing two concerns: public vs. private. Also, the Supreme Court has often defined certain speech, also known as “at risk speech,” as being unprotected by the First Amendment:
- Burning draft cards to protest draft — prohibited because of superior governmental interest.
- Words likely to incite imminent violence, termed “fighting words.”
- Words immediately jeopardizing national security.
- Newspaper publishing false and defamatory material — libel.
Freedom of speech and expression is not a luxury of democracy, but it should be recognized as a necessity. In order for a democratic form of government to function and continue to exist, it must have free expression and educated criticism. Most of the development of the United States’ free society has come about because of public debate and disclosure, in both oratory and written form.
It has also been continuously recognized by the leaders of the United States that the minority view can also hold truths. This is how our nation was able to sever ties to Great Britain, by a minority group speaking out against the tyranny.
The First Amendment has endured more than 200 years, without substantial alterations and negation. This limited history of change should stand as a testament of the First Amendment’s importance and role in America, presently and throughout our history. There are rare instances in American history when the First Amendment has been set aside. The most notable periods of government censorship, which are few, involve sedition acts and wartime censorship.
The Sedition Act of 1798, signed by President John Adams, gave federal authorities the right to prosecute any individual suspected of plotting against the federal government. This Act also allowed a provision that made it a criminal act to speak or write maliciously of the president or of Congress, which was defined as “with the intent to defame” or to bring either “into contempt or disrepute.”
The Sedition Act of 1798 effectively stifled legitimate political discussion, and was held in criticism for this reason. Critics of the government either bowed to the pressure of this act or were punished. The act expired in 1800 and was not renewed. Congress had voted that reparations to its victims be instituted, based on the opinion that if they were adhering to the beliefs of the Founding Fathers such an act was inconsistent with the First Amendment.
During the period of slavery, 1600-1800s, many slave states defied the First Amendment and censored abolitionists’ pamphlets, writings and speeches. The states’ defense of ignoring the protections of the First Amendment settled on the vague wording of this amendment compared to that in the other Bill of Rights Amendments.
The First Amendment states “Congress shall make no law...” which meant the federal government according to this interpretation. To clear up this disagreement, Congress ratified in 1865 the Fourteenth Amendment, which made the First Amendment binding upon government below the federal level.
The Fourteenth Amendment defined citizenship and made constitutional adjustments to post-Civil War conditions. Most significantly, the Fourteenth Amendment guaranteed due process of law and equal protection of the laws against infringement by the states. Therefore, the states could no longer impose their own censorship and hindrance of speech standards on the protections guaranteed by the First Amendment.
Wartime censorship has been used to protect national security interests. The words “clear and present danger” are the “yardstick” by which censorship rights of government as opposed to the free-speech rights of individuals are measured in such times of crisis. President Abraham Lincoln first used this type of censorship during the Civil War. First Amendment freedoms and protections were secondary, according to President Lincoln, to the preservation of the nation. Lincoln believed in “the ends justified the means” argument in preserving all the laws. The Civil War alterations to the protections guaranteed under the First Amendment consisted of opening mail and censoring anti-Union newspapers.
Wartime censorship was also employed during World War I. Another Sedition Act, passed in 1918, considered speaking “disloyal or abusive language” about the flag, Constitution and government a criminal act.
Passage of the Espionage Act of 1917, which made it a crime to write or say anything that might encourage disloyalty or interfere with drafting of servicemen, also hindered First Amendment protections. “Subversive” books were taken off the shelves in stores and libraries. A Federal Censorship Board was assigned to regulate such activities. Again, the argument of protecting national security interests was maintained.
During the 1930s, the Federal Communications Commission began its policy of requiring broadcast station owners who engage in airing editorial opinions on a controversial issue to offer time on the air to any opposing opinion. The FCC argued that it was not violating First Amendment rights of broadcasters because the airwaves are a limited resource and belong to the public. Thus the right of public access to the airwaves must be protected. This practice, known as the “Fairness Doctrine,” was scrapped in 1987.
Similar activities took place during World War II. It was considered an illegal activity to advocate violent overthrow of the government at any level, or to say, do or write anything that might encourage insubordination among the military or to encourage disloyalty.
After World War II, censorship became a hotbed during what is commonly referred to as the “McCarthy Era” and “The Red Scare.” The target was Communism. Writings, speeches and activities were scrutinized for communist propaganda and leftist advocacy. Eventually, such censoring activities were done away with and the First Amendment was restored to its original legislative intent.
Today, the First Amendment freedoms include various areas: freedom of information, government access and citizens’ right to know and right to privacy. Furthermore, according to James Russell Wiggins (former editor of the Washington Post), the “right to know” consists of five separate parts:
- Freedom from prior restraint.
- Freedom from punitive censorship.
- Right to collect information.
- Right to have access to the media and materials necessary for collecting that information.
- Right to distribute information and to make it directly available to all members of the public without interference from the government under law or from private groups acting outside the law.
The only area that is not recognized by the Court as falling under First Amendment protection is obscenity. It is the common opinion that obscenity can be used as a litmus test for deciding what is and what is not protected under the First Amendment. Obscene material presents a “clear and present danger” to society and that is why it has not been deemed as protected speech.
The key in this issue is to decide what is obscene and pornographic material. The difficulty lies in defining this, but not abridging any freedoms and protections of the First Amendment. The Court has been faced with several obscenity cases. It has ruled in many of them that prior restraint was unacceptably used and that censorship is not to be given free reign.
The censoring of obscene materials allows one individual to decide for a nation what is morally acceptable and what is not. This is the major reason why the Courts have taken a strict role in assuming this responsibility. They do not want to take on the role as the “morality police” or “Big Brother” in regard to different forms of literature, movies, books, tapes, etc.
Thus, for material to be deemed truly “obscene” it must present a danger to the nation or to a class of citizens, such as children (e.g. child pornography) before the Court will take a strong stand against its dissemination.
Illinois Press Association Guide to First Amendment & Access Laws (1995)