The United States Constitution: The First Amendment

Alexis Henry

University of Nebraska at Kearney

JMC 414-01: Communication Law

Professor Ford Clark

knowledge in U.S. History. In use since 1789, the Constitution is one of the longest

surviving written charters of government. The Constitution serves to protect the rights of

all Americans. And while each of the 27 amendments are equally important in protecting

the rights of Americans, one Amendment sticks out from all, and that is the First

Amendment.

The National Archives introduces the United States Constitution with the

Preamble reading, “We the People of the United States, in order to form a more perfect

Union, establish Justice, ensure domestic Tranquility, provide for the common defense,

promote the general Welfare, and secure the Blessings of Liberty to ourselves and our

Prosperity, do ordain and establish this Constitution for the United States of America.”

This introduces the Constitution which unites a group of states with different interests,

laws, and cultures. The Constitution gave the power of the union to the people and

without it the American Experiment of democracy may have never lived on as long as it

has.

The First Amendment guarantees five freedoms. These five freedoms may seem

simple, but underneath everything they’re five of the most important, and influential

decision-making factors in the United States. From Cornell Law School’s Legal

Information Institute, 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 the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.” This

amendment makes sure that Congress doesn’t promote one religion over others and
does not restrict an individual’s religious practices. It guarantees the freedom of

expression by prohibiting Congress from restricting the press or the rights of individuals

to speak freely. And last but certainly not least the First Amendment guarantees the

rights of citizens to assemble peaceably and to petition their government.

The United States Constitution is unique for many ways in which its founders

believed that a government made up of imperfect people exercising power over others

should possess limited powers. According to the National Center for Constitutional

Studies the Constitution is unique because the founders “delegated to the government

only those rights they wanted it to have, holding to themselves all powers not delegated

by the Constitution. They even provided the means for controlling those powers they

had granted to the government. This was the unique American idea.”

With that being said, the five freedoms granted in the First Amendment were

delegated. For those who find themselves religious, the First Amendment may be one of

the most important freedoms they are granted within the Constitution. According to

Samirah Majumdar writing for a Pew Research Center analysis of laws and policies in

198 countries in 2019, “41 countries - or around a fifth (21%) of those evaluated –

banned at least one religion-related group” (Majumdar 2021). More commonly noted the

Middle East-North Africa region had the highest share of countries with bans on

religion-related groups. Bans on religion come in all forms, much like bans on other

rights such as gun laws or abortion laws. Majumdar’s study also talks about how in

2017 Russia’s Supreme Court banned Jehovah’s Witnesses, criminalizing their activities

as being extremist. Jehovah’s Witnesses in Russia faced detentions, travel restrictions,

investigations and even raids on their homes. Another example comes from Egypt in
which a long-standing ban on Baha’is and Jehovah’s Witnesses were in place.

According to Majumdar’s study, this ban prevented them from “banking or registering for

school. Marriages were not legally recognized, and they were not permitted to have

places of worship.” While these bans do not directly affect the freedom of religion in the

United States, it is important to understand the freedoms and to continue to protect

them.

Freedom of religion allows one to explore, praise, preach, learn and love any

religion without consequence. This freedom allows one to attend church on the

weekend and study the Bible on the weekdays. This freedom allows one to invite their

neighbors over for a cup of coffee to talk about their precious love for God and religion.

This freedom allows one to experience a world of possibility without fear.

While the First Amendment promises the freedom of religion and allows citizens

to worship and love the God of their choice, it also gives protection to those who don’t

believe in religion. This ensures that the U.S. government does not favor a religion or

encourage a religion among the people. An article with Middle Tennessee State

University shares the rights under the “establishment” clause of the First Amendment.

“The first religion clause says the government and its agencies are prohibited from

establishing or requiring religion, including official attempts to impose or instill beliefs in

students.” This clause also prohibits the government from setting up a national religion

and having prayers be broadcast over certain public areas. Students have the right to

express religion among themselves and share their beliefs if they do not disrupt the

school day.
 This freedom is very important as religion is one of the main driving forces people

believe in and look to hope for. Not only is it important in terms of worship, but also in

terms of democracy. This freedom contributes to social peace that many parts of the

world do not get to experience. Freedom of religion undoubtedly strengthens the United

States, its government and its people.

The second freedom given within the First Amendment, is the freedom of

speech. The ‘freedom of speech’ is so simply put in the Constitution as it reads

“abridging the freedom of speech.” And while its definition seems so simple, over the

course of history, people have found it far from that. Michael Gonchar with the New York

Times writes “even though the concept of freedom of speech on its face seems quite

simple, in reality there are complex lines that can be drawn around what kinds of

speech are protected and in what setting” (Gonchar 2018). While the First Amendment

grants all American citizens liberties to criticize their government and the principals they

live by, history has shown that one doesn’t always walk away without being censored or

persecuted.

In 1919 the Supreme Court saw Schenck V. United States which declared that

individuals are not entitled to speech that presents a “clear and present” danger to

society. However, years later Brandenburg V. Ohio in 1969 declared that racist language

and hate speech should generally be protected unless it is likely to cause imminent

violence.

The freedom of speech is especially important, but is also just as difficult to

understand. It’s vital for individuals to navigate this freedom with caution. Freedom of
speech allows individuals to have opinions on certain social issues and express why

those issues matter to them without fear of government retaliation. The freedom of

speech gives individuals the right to criticize the government, and its policies and

actions, a freedom that is not as common in many other countries. Richard Paddock

with New York Times writes about the military coup that killed hundreds of protestors

who spoke out about the horrible things happening within Myanmar. “The military’s

onslaught has left the country living in fear” (Paddock 2021). It’s important to

understand that while the U.S. has this freedom, there are people who do not.

Understanding, respecting and continuing to advocate for this freedom is

important to upholding this piece of the First Amendment. While the First Amendment

guarantees many freedoms there are certain limitations. Fighting words are words that

are meant to incite violence and may not always be protected ‘free speech.’ An example

of ‘fighting words’ being used to determine an arrest happened in 1942 when The U.S.

Supreme Court first defined them. According to Oyez, a free law project, “Chaplinsky V.

New Hampshire, “by their very utterance, (fighting words) inflict injury or tend to incite

an immediate breach of peace.” Within this case, Walter Chaplinsky was distributing

literature on a public sidewalk that supported his beliefs as a Jehovah’s Witness. After

some calls by surrounding neighbors, Chaplinsky was arrested for disruption and

attacking other forms of religion. At the station he called an officer a “God-damned

racketeer” and a “damned Fascist.” He was convicted under a state law that prohibited

offensive, derisive, or annoying speech to any person who is lawfully in a public area.

This court case paved the way for future decisions revolving around fighting words,

advocacy of illegal action, commercial speech and obscenity. The First Amendment also
restricts harmful speech, such as yelling “fire” in a crowded room or a written lie that

causes harm.

The First Amendment also protects the freedom of expression, the right to

assemble and the right to petition. Cornell’s Legal Information Institute says, “The right

to free speech includes other mediums of expression that communicate a message.

The level of protection speech receives also depends on the forum in which it takes

place.” It’s important to know the limitations one has regarding the right to express

themselves and the right to petition. America’s Civil Liberty Union (ACLU) writes, “police

and other government officials are allowed to place certain narrow restrictions on the

exercise of speech rights.” Before exercising their right to protest it’s important one

knows their protester rights. In 2020, the U.S. along with many other countries were

faced with a new wave of protests. It was more important than ever to research, learn

and understand protester rights. The Black Lives Matter Movement sparked protests

and assemblies to form across the globe. The ACLU writes that a person's rights are

strongest in traditional forums, such as “streets, sidewalks, and parks. You also have

the right to speak out on other public property, like plazas in front of government

buildings.” During any event in which one is protesting or expressing views it’s important

to understand the rules. If an individual remains calm, follows orders and does not incite

violence, rights will be upheld.

However, while one is granted these rights, they can easily be forgotten. In any

situation where it may seem like rights are being violated, writing down everything that

has happened including the officers’ badge and patrol car numbers is important. Making

sure to have witnesses and contact information for said witnesses is also imperative.
There are many situations where people have been arrested during protests and a lot of

the time are innocent. As the world continues to advance technologically it’s important

to use one's resources and gather strong resources to ensure safety.

While public spaces are typically safe spaces to assemble and petition there are

instances where limitations are in place. In 1941 a group of people had gathered with

the purpose of forming an information march where they would carry signs and hand out

leaflets. According to Oyez Supreme Court Resources, “The group did not apply for a

permit. They were convicted in municipal court for violating the statute prohibiting

unlicensed parades.” For a while this conviction was questioned regarding violating the

First Amendment’s guarantee of freedom of speech and assembly. According to the

Oyez Research group, “The court held that a municipality’s ability to impose regulations

that create order and safety for its populace does not infringe on the civil liberties of its

people.” Throughout the Constitution, the safety of the American people remains

important. While certain freedoms are allowed, limitations can be set to create order.

There are several things that the U.S. population does not agree on. Politics,

abortion, transgender rights, religion, taxes, whether the earth is flat and more.

However, one thing that many Americans can seem to agree on is the importance of the

First Amendment. Jan Neuharth with USA TODAY writes that, “The First Amendment is

an important reminder of the rights we enjoy - and must protect” (Neuharth 2021).

Arguably, the First Amendment is also the most important maintenance of a democratic

government. The Editorial, a series on the U.S. Constitution and structure of the U.S.

government says, “The freedoms of speech, press, assembly and the right to petition
the government and seek redress of grievances proclaim that citizens have the right to

call the government account.”

To understand these freedoms is quite possibly one of the most important things

an individual can learn within their lifetime. The limitations and freedoms among the

First Amendment are vast and detailed. To visualize the importance of these freedoms,

one should understand what life would look like in the United States if there was no First

Amendment. A lack of First Amendment freedoms could result in legislative and other

legal action to punish speakers and writers, followers to religions, rally organizers and

participants, and people seeking to complain to the government about perceived

wrongs. In terms of freedoms, the first amendment is one of the most vital freedoms

guaranteed.

Middle Tennessee State University provides different examples that would occur

if the First Amendment freedoms were not guaranteed. As for speech, certain instances

of political expression could be punished by law and other opinions such as, “abortion,

race/affirmative action, climate change, police conduct, worker’s rights, religious

viewpoints, or women’s rights.” These are just a few topics that would be punishable if

spoken incorrectly about without a First Amendment. It’s also important to note that

“political expression” can also take the form of songs, films, books, plays and more. All

these pieces would be limited without the First Amendment freedom of speech. Imagine

if the U.S. government could force an official religion across the country and prohibit the

practice of other religions. These are things that could take place, as they do in many

other countries that are lacking the freedom of religion. Protest rallies and marches
could be prohibited, membership in certain groups could be punishable by law, and

threats against the right to petition the government would be enforced.

The presence of the First Amendment is recognized everywhere. Stated above

are just a few things that could make an appearance within the country if the First

Amendment were non-existent. Protecting these freedoms are prudent to upholding the

functionable democracy.

While the history of the First Amendment is important, it’s equally as important to

understand the First Amendment in modern times. Social Media is a growing technology

and social networking platform that is protected for the most part, from government

censorship. There are many things that different media platforms such as newspapers,

television, radio broadcasts, billboards, and more that are restricted from publishing or

releasing certain information or content. According to the Freedom Forum Institute, “The

First Amendment protects hate speech from government censorship unless that speech

incites or is likely to incite imminent lawless action” (Nott. 2022). Hate speech is a form

of speech that offends, or attacks others based on race, ethnicity, religion, gender,

disabilities and other traits. The government can also censor pornography if it’s

obscene, otherwise it is allowed. It’s been said that nudity alone is not enough for

something to be deemed obscene. It also depends on the platform this content is

posted on and that platform's community standards. The First Amendment also protects

false statements through the media. However, people are allowed to sue for defamation

if they believe what was said is harming their character. Lastly, regarding the media, the

First Amendment does not protect true threats from government censorship. However,
according to Nott, anti-bullying laws have been struck down for violating the First

Amendment.

In 2017, The U.S. Supreme Court saw Packingham V. North Carolina in which

the Supreme Court invalidated a North Carolina law that prohibited sex offenders from

accessing social media websites. Many argued that they had violated another's

personal space and were charged with a criminal act and should not have access to

social media. The decision emphasized the free-speech capabilities of social media

existing today. David Hudson with The First Amendment Encyclopedia says “this is

similar to how the court viewed the speech-enhancing capabilities of the Internet in

Reno v. ACLU in 1997 (Hudson 2021). Social media is an on-going and growing

networking system. As the world continues to use social media and other forms of

media it’s important to understand what is and is not allowed and what has been seen in

court in the past.

The First Amendment is arguably one of the most important pieces of the United

States Constitution. It not only guarantees many freedoms but is most important for the

protection of democracy. While the First Amendment has limitations, it’s important to

balance people's individual rights against the rights of society. Since 1791, the First

Amendment has been practiced throughout the country. With increases in First

Amendment cases, the interpretation of this amendment will continue to change

throughout the years. The freedom of speech, religion, press, petition and assembly

continue to be a vital piece of decision making and will undoubtedly continue to do so

for many years to come.

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