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Question: What should everyone know about the First Amendment? Floyd Abrams: Well, I guess the first thing one has to know about the First Amendment is that it wouldnt be there at all if Thomas Jefferson had not insisted. The Constitution had been pretty well drafted and Jefferson, who was not at the Constitution Convention and who was in Paris at that time, basically took the position that without a Bill of Rights and in particular without a Bill of Rights that protected freedom of speech and freedom of the press, that he would not support the new Constitution.

So a Bill of Rightsthis Bill of Rights and this 1st Amendmentwas a essential ingredient of the Constitution from the start. And from the start it protected a number of different sorts of speech beliefs, conscience, and the like. It protects freedom of religion, it protects freedom of speech, protects freedom of press, protects freedom of assembly, all of them.

And through the many years since the drafting of the Constitution and the adoption of the Bill of Rights which of course starts with the First Amendment. Through that time period weve had many, many cases in the courts which have adopted through interpretation the First Amendment to new problems being sustained by the people and by the states as well. At the beginning, the First Amendment applied only to the Federal Governmentafter all it does say, Congress shall make no law. After the Civil War and the adoption of amendments post-Civil War, they were held to apply to the states but really not until late 1920s, early 1930s. So through most of American history the First Amendment really had nothing to do with what states did and what state law turned out to be.

There was state constitutions but the federal Constitution, the First Amendment, applied only to the Federal Government. Where have we gone? Well we have gone through the years in a direction generally of more protection. The First Amendment, remember, applies only as a protection against the government, not against private employers, not against friends, or enemies, or this, or that. It is a protection against the government. The government depriving people of their freedom of religion. The government is telling them in effect who to pray to or whether to pray at all, and in what way. And the government depriving people of freedom of speech or freedom of the press, or freedom of assembly. I mean, at its core it is a protection of human freedom by protecting against government overreaching.

That was debated a lot when the First Amendment was adopted. Alexander Hamilton said, Why do we need a Bill of Rights at all? Whoever said Congress could pass a law stripping the people of freedom of speech? They dont have the power to do it, so why do we need to have a Bill of Rights or why do we need a First Amendment in the first place? And, as I said, Jefferson insisted. Jefferson said, Any constitution for this country ought to say and say in so many words that there was a list of untouchable areas into which Congress could not transgress, into which the new Federal, National Government couldnt go."

And with that backgroundwhile even from the start there were problems, First Amendment problems, the Alien and Sedition Act was adopted in 1798, that close to the adoption of the Constitution and then the Bill of Rights. And it quite literally made it a crime to speak to badly of the President, then John Adams. Not the Vice President, because it was Jeffersoneven then we had politics. But it made a crime to say critical things about the President at least if they were "false," which of course lead to lots of issues about whats an opinion and whats a fact, whats true and whats false. But that law was our first law which on the face of it violated the First Amendment. Jefferson called it, living under a rain of witches. And ultimately the verdict of history as the Supreme Court came to say, the verdict of history was that the Alien and Sedition Acts were unconstitutional and through the years some acts of Congress have been held to be unconstitutional. Many acts, more recently of states have been held to be unconstitutional, and in all these ways the adoption of the First Amendment has been an incalculable protection of the public against overstepping by the government.

Recorded July 29, 2010

Interviewed by Max Miller

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The First Amendment in Five Minutes - Video | Big Think

April Ryan, of American Urban Radio Networks, raises her hand to ask a question of White House press secretary Sarah Huckabee Sanders during a press briefing at the White House

Conservatives who should be appalled by President Donald Trumps anti-media attacks have responded instead with a collective shrug.

Never mind that Trump has taken steps to block publication of a critical book, assures a typical Wall Street Journal editorialhe would never follow through, and the courts would never go along. The Journal likewise brushes off Trumps threat to open up the libel laws as familiar and feckless bluster. Trump may brand journalists the enemy of the American people and hand out fake news awards, goes the argument from the right, but his actions matter more than his words.

This sanguine take on Trumps campaign to demonize the news media overlooks the real-world damage it inflicts on journalists, both at home and abroad. Trumps words and actions have materially chilled speechin the U.S., where 78 journalists were attacked or arrested last year, and around the world, 262 journalists are in prison, 21 of them for publishing fake news. The toxic fallout includes death threats, anti-Semitic media harassment, physical attacks, and GOP governors who deny interviews. (One politician paid more than $5,000 in fines and restitution after body-slamming a reporter.)

American journalists on a recent panel co-hosted by the Newseum and the Committee to Protect Journalists described struggling to do their work in an unprecedented atmosphere of hostility, suspicion, stonewalling, and even fear. Death threats are routine. The FBI is on speed dial. So is the Secret Service, and the local police department, said panelist April Ryan, White House correspondent for American Urban Radio Networks, who has publicly tangled with Trump.

Foreign journalists are paying an even bigger price, prompting some conservatives to finally speak up. Trumps unrelenting attacks on the integrity of American journalists and news outlets have provided cover for repressive regimes to follow suit, wrote GOP Senator John McCain, of Arizona, in a recent Washington Post op-ed. McCain cited journalists arrested and systematically discredited in China, Egypt, Russia, Turkey, Venezuela, and elsewhere.

His fellow Arizona Republican, Senator Jeff Flake, noted in a Senate floor speech that such despots as Syrian President Bashar al-Assad and Philippine President Rodrigo Duterte have used the words fake news to justify their human rights abuses. Trumps use of Josef Stalins phrase enemy of the people to describe journalists is a testament to the condition of our democracy, said Flake, who added that of course, the president has it precisely backwarddespotism is the enemy of the people. The free press is the despot's enemy, which makes the free press the guardian of democracy.

Conservatives blithe dismissal of Trumps chilling impact is all the more striking given the First Amendments increasingly central place in conservative orthodoxy. The conviction, however unfounded, that campaign-finance limits would lead to book banning was at the heart of the Supreme Courts Citizens United ruling to deregulate corporate political spending. Since Hillary Clinton opposed that ruling, conservatives argue, she posed a greater First Amendment threat than Trump. Besides, they assure, Supreme Court Justice Neil Gorsuch will rigorously defend free speech.

But not all First Amendment defenders take Trumps media wars so lightly. None other than constitutional law expert Floyd Abrams, who led the GOPs charge to deregulate politics in the name of free speech in Citizens United, warned The Wall Street Journal in a letter that its editorial board is far too serene about Trumps bid to silence author Michael Wolff. Trumps threats have led to actual lawsuits, Abrams wrote, and not all publications and journalists can so easily shrug off such threats of financially crippling litigation.

In an interview, Abrams acknowledged that Trump would find it hard to expand libel laws, which now fall largely under state jurisdiction. But he warned that there is no guarantee that an extraordinary event, such as a terrorist attack, might not prompt Trump to push hard to federalize libel laws. Abrams said hes hopeful that Gorsuch will rigorously defend the First Amendment, but that no one knows how he might rule in a case that, say, pitted national security against free speech concerns. Trump has so far been unable to stifle speech of which he disapproves noted Abrams, but the unending drumbeat of criticism, accusation, and denigration of the press takes a toll.

Indeed, Trumps assault on free speech is far more direct, aggressive, and broadly destructive than anything yet seen in the United States. Hes threatened legal action to silence critics; called for news organizations to fire specific journalists; tweeted videos and images of himself inflicting bloody violence on figures bearing the logo of CNN, a favorite target; and has weaponized mainstream media outlets as fake news.

The news media, from cable channels dominated by shouting matches to news outlets that fail to check their facts, do share some of the blame for this mess. Only 33 percent of Americans have a very favorable or somewhat favorable opinion of the news media, noted a report from Gallup and the Knight Foundation, and 66 percent say the media are bad at separating fact from opinion. Such surveys reflect a larger news industry crisis in confidence, and come amid soul-searching forums like the one at the Newseum, and another this week at The Washington Post.

And progressives, too, have failed to consistently defend free speech. Campus political protests, while often overblown and even egged on by conservative provocateurs, have raised legitimate First Amendment concerns. Anti-fa activists have resorted to violence. President Barack Obama kept a tight rein on information, was not transparent, and aggressively prosecuted whistleblowers, according to Reporters Without Borders.

But Trumps assault on free speech goes far deeper, advancing a Soviet-style disinformation campaign that helps fuel what a recent Rand Corporation report dubbed Truth Decay. Trump treats facts as irrelevant and fungible, having made 2,140 false or misleading claims in his first year. Yet heightened disagreement about facts and how to interpret data, Rands report warns, contributes to government dysfunction, hurts diplomacy and economic investments, and poses a threat to the health and future of U.S. democracy.

And Trump may be gearing up to go further, materially weakening media protections in the U.S. Last year, 34 American journalists were arrested, many when they were covering protests, and one photojournalist went to trial (and was acquitted) for a felony offense. American journalists still enjoy far greater institutional protections than journalists in, say, Turkey, where 73 journalists are now imprisoned, notes Alexandra Ellerbeck, North American program coordinator at the Committee to Protect Journalists.

Attorney General Jeff Sessions has signaled plans to revise Obama administration media guidelines, making it easier for the Trump administration to subpoena reporters. Obama prosecuted eight leakers under the Espionage Act, according to CPJ, but the Trump administration has 27 leak investigations open. Any move that makes it harder for journalists to protect their sources is a fundamental and basic assault on information gathering and news reporting, warns Ellerbeck.

None of this seems to worry supposed First Amendment champions on the right. With a few exceptions, such as Flake and McCain, conservatives take Trumps assaults on free speech merrily in stride. As GOP election lawyer Jim Bopp recently assured the Center for Public Integrity:

Liberals refuse to understand with Trump that you cant take what he says literally. What is important about Trump is what hes doing and not what hes saying, and in practice, everything hes done is in step with maintaining a First Amendment-friendly approach to campaign finance.

Bopps comments shed light on the real reason Republicans dont really care whether Trump trashes press freedoms. For many on the right, the First Amendment is less important as a tool to protect speech than to protect money, and those who spend it. As ethics attorney Kathleen Clark, who teaches law at Washington University in St. Louis, puts it: Economic power, and the ability to exploit economic power, is at the center of their vision of the First Amendment.

Its not the only way that Republicans have swept aside Trumps threats to democracy, national security and the rule of law. If they just change the subject to Hillary Clinton or Neil Gorsuch, Republicans seem to think, all will be well. Nor is it the first time the GOP has elevated partisan politics above long-cherished principles. But given how highly conservatives purport to prize the First Amendment, its remarkable how casually theyve abandoned it.

This article has been updated.

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What First Amendment? - prospect.org

The First Amendment of the United States was ratified, along with nine other amendments to the Constitution of the United States making up the Bill of Rights, on December 15, 1791. The text of 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.

These forty-five words encompass the most basic of American rights: freedom of religion, freedom of speech, freedom of the press, the right of assembly, and the right of petition. But what do those words mean? The meaning was not clear in 1791 and still is the subject of continuing interpretation and dispute in the 21st Century.

The First Amendment was not important in American life until well into the 20th Century. Yes the words were there, but the first word of the First Amendment restricted its sweep to the federal government: Congress shall make no law . . . And even in its 18th Century origins, despite democratic stirrings and impulses to expanding freedom among some leaders, there is reason to believe that the Bill of Rights was offered as an 18th Century political compromise, a hollow gesture in comparison to the sweeping words. When the Federaliststhose favoring the centralized government proposed by the draft Constitution of 1787---feared that opposition by the Antifederalists would stop adoption of the second Frame of Governnment (to replace the Articles of Confederation).

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History of the First Amendment | JEM First Amendment Project

First Amendment: Religion and Expression

What is 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.

The First Amendment Defined:

The First Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 1st Amendment:

The First Amendment to the United States Constitution prohibits the passing or creation of any law which establishes a religious body and directly impedes an individuals right to practice whichever religion they see fit.

The First Amendment to the United States Constitution is a part of the Bill of Rights and the amendment which disables an entity or individual from practicing or enforcing a religious viewpoint which infringes on the freedom of speech, the right peaceable assemble, the freedom of the press, or which prohibits the petitioning for a governmental evaluation of grievances.

In its infancy, the First Amendment only applied to laws enacted by Congress; however, the following Gitlow v. New York, the Supreme Court developed that the Due Process Clause attached to the Fourteenth Amendment applies the fundamental aspects of the First Amendment to each individual state, including all local governments within those states.

The Establishment clause of the First Amendment is the primary pronouncement in the Amendment, stating that Congress cannot institute a law to establish a national religion for the preference of the U.S. government states that one religion does not favor another. As a result, the Establishment Clause effectively created a wall of separation between the church and state.

How the First Amendment was created:

When the original constitution was created there was significant opposition due to the lack of adequate guarantees for civil freedoms. To offer such liberties, the First Amendment (in addition to the rest of the Bill of Rights) was offered to the states for ratification on September 25, 1789 and later adopted on December 15, 1791.

Court Cases tied into the 1st Amendment

In Sherbert v. Verner, the Supreme Court applied the strict scrutiny standard of review to the Establishment Clause, ruling that a state must demonstrate an overwhelming interest in restricting religious activities.

In Employment Division v Smith, the Supreme Court went away from this standard by permitting governmental actions that were neutral regarding religious choices.

Debs v. United States on June 16, 1919 tested the limits of free speech in regards to the clear and present danger test.

1st Amendment: Freedom of Speech

Freedom of speech in the United States is protected by the First Amendment and is re-established in the majority of state and federal laws. This particular clause typically protects and individuals right to partake in even distasteful rhetoric, such as racist or sexist comments and distasteful remarks towards public policy.

Speech directed towards some subjects; however, such as child pornography or speech that incites an imminent threat, as well commercial forms of speech are regulated.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

Georgia, Massachusetts and Connecticut did not ratify the first 10 Amendments until 1939

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This is one of the most confusing and controversial areas of the current school-prayer debate. While the courts have not clarified all of the issues, some are clearer than others.

For instance, inviting outside adults to lead prayers at graduation ceremonies is clearly unconstitutional. The Supreme Court resolved this issue in the 1992 case Lee v. Weisman, which began when prayers were delivered by clergy at a middle schools commencement exercises in Providence, Rhode Island. The school designed the program, provided for the invocation, selected the clergy, and even supplied guidelines for the prayer.

Therefore, the Supreme Court held that the practice violated the First Amendments prohibition against laws respecting an establishment of religion. The majority based its decision on the fact that (1) it is not the business of schools to sponsor or organize religious activities, and (2) students who might have objected to the prayer were subtly coerced to participate. This psychological coercion was not resolved by the fact that attendance at the graduation was voluntary. In the Courts view, few students would want to miss the culminating event of their academic career.

A murkier issue is student-initiated, student-led prayer at school-sponsored events. On one side of the debate are those who believe that student religious speech at graduation ceremonies or other school-sponsored events violates the establishment clause. They are bolstered by the 2000 Supreme Court case Santa Fe v. Doe, which involved the traditional practice of student-led prayers over the public-address system before high school football games.

According to the district, students would vote each year on whether they would have prayers at home football games. If they decided to do so, they would then select a student to deliver the prayers. To ensure fairness, the school district said it required these prayers to be non-sectarian [and] non-proselytizing.

A 6-to-3 majority of the Supreme Court still found the Santa Fe policy to be unconstitutional. The majority opinion first pointed out that constitutional rights are not subject to a vote. To the contrary, the judges said the purpose of the Bill of Rights was to place some rights beyond the reach of political majorities. Thus, the Constitution protects a persons right to freedom of speech, press, or religion even if no one else agrees with the ideas a person professes.

In addition, the Court found that having a student, as opposed to an adult, lead the prayer did not solve the constitutional dilemma. A football game is still a school-sponsored event, they held, and the school was still coercing the students, however subtly, to participate in a religious exercise.

Finally, the Court ruled that the requirement that the prayer be non-sectarian and non-proselytizing not only failed to solve the problems addressed in Lee v. Weisman, it may have aggravated them. In other words, while some might like the idea of an inclusive, nonsectarian civil religion, others might not. To some people, the idea of nonsectarian prayer is offensive, as though a prayer were being addressed to whom it may concern. Moreover, the Supreme Court made clear in Lee v. Weisman that even nondenominational prayers or generic religiosity may not be established by the government at graduation exercises.

Another thorny part of this issue is determining whether a particular prayer tends to proselytize. Such determinations entangle school officials in religious matters in unconstitutional ways. In fact, one Texas school district was sued for discriminating against those who wished to offer more-sectarian prayers at graduation exercises.

On the other side of this debate are those who contend that not allowing students to express themselves religiously at school events violates the students free exercise of religion and free speech.

Case law indicates, however, that this may be true only in instances involving strictly student speech, and not when a student is conveying a message controlled or endorsed by the school. As the 11th Circuit case of Adler v. Duval County (2001) suggests, it would seem possible for a school to provide a forum for student speech within a graduation ceremony when prayer or religious speech might occur.

For example, a school might allow the valedictorian or class president an opportunity to speak during the ceremony. If such a student chose to express a religious viewpoint, it seems unlikely it would be found unconstitutional unless the school had suggested or otherwise encouraged the religious speech. (See Doe v. Madison School Dist., 9th Cir. 1998.) In effect, this means that in order to distance itself from the students remarks, the school must create a limited open forum for student speech in the graduation program.

Again, there is a risk for school officials in this approach. By creating a limited open forum for student speech, the school may have to accept almost anything the student wishes to say. Although the school would not be required to allow speech that was profane, sexually explicit, defamatory, or disruptive, the speech could include political or religious views offensive to many, as well as speech critical of school officials.

If school officials feel a solemnizing event needs to occur at a graduation exercise, a neutral moment of silence might be the best option. This way, everyone could pray, meditate, or silently reflect on the previous years efforts in her own way.

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First Amendment FAQ | Newseum Institute