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work, and how these freedoms can be protected.

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First Amendment Center | Freedom Forum Institute

Picking a Supreme Court nominee can be less a science than a kind of holy divination. Its an exercise not only in prophesizing a judges future decisions based on past actions, but also predicting which questions he or she might one day be asked. But one thing about Donald Trumps nominee, Brett Kavanaugh, is certain. If he is confirmed to fill Justice Anthony Kennedys seat, Kavanaugh will not only become a decisive vote on cases shaping the future of administrative agencies, religious liberties, gun and abortion rights, and environmental protections, he will also be joining a court whose conservative majority has redefined the First Amendment, making it a powerful deregulatory toola process Kavanaugh is poised to accelerate.

In its last term alone, the Supreme Court decided four landmark cases on First Amendment grounds. In one, conservative Justices overturned a California state law that would have required anti-abortion crisis pregnancy centers to disclose information about abortions. The Justices said that because the law compelled the organizations to speak against their will by posting a government notice, it violated the First Amendment. In another case, Janus v. AFSCME, the court overturned a 41-year-old precedent requiring public-sector employees to pay nonpolitical union fees. The Justices said that because the provision compelled employees to speak by paying dues, it too violated the First Amendment.

The courts sweeping definition of what constitutes free speech has alarmed some of its members. In her dissent in Janus, Justice Elena Kagan accused her colleagues of weaponizing the First Amendment. She warned that because almost all economic and regulatory policy affects or touches speech, judges can use expansive definitions of speech as a tool to unravel regulations and overturn precedents.

Its a project that court watchers say has been decades in the making. In the 1970s, liberal lawyers, acting on behalf of consumers, were the first to bring cases designed to expand the scope of the First Amendment. But conservative lawyers quickly saw an opportunity. By the end of that decade, conservative judicial organizations were launching an onslaught of First Amendment cases of their own, with the goal of deregulating and limiting government power, says Frederick Schauer, a professor at the University of Virginia School of Law. Ilya Shapiro, a senior fellow at the libertarian Cato Institute, says he now advises lawyers to find free-speech arguments whenever they can. If a judge overturns a regulation or precedent on the grounds of government overreach, he explains, thats seen as controversial and partisan. If a judge reaches the same conclusion on the grounds of protecting free speech, its easier for people to accept.

The past decade has borne fruit for this conservative judicial strategy, with the 2010 Citizens United case acting as a bellwether. In that case, the court ruled not only that corporations were speakers protected under the First Amendment, but also that corporate campaign contributions constituted protected speechand therefore could not be limited. The decision triggered an avalanche of subsequent cases built upon similar logic. In 2011, the court struck down a Vermont law barring the sale of subscriber information to pharmaceutical companies. The Justices ruled that speech in aid of pharmaceutical marketing is a form of speech protected by the First Amendment. A year later, the D.C. Circuit Court of Appeals struck down a rule requiring companies to post federal labor protections on the grounds that it compelled companies to speak against their will. The same court later overturned an FDA rule requiring graphic warning labels on cigarettes, saying they too violated free speech by compelling tobacco companies to speak.

As a D.C. Circuit judge, Kavanaugh has a record on First Amendment cases that is slim but suggestive. Last year he objected to his fellow judges refusal to rehear a challenge to the FCCs net-neutrality rule. The rule, which was repealed this year, would have required Internet-service providers to treat data from all websites equally. Kavanaugh wrote that the courts view violated the Internet-service providers First Amendment rights by restricting their editorial discretion. Kavanaughs decision in a 2010 case on federal limits on contributions to political parties also showed sympathy for free-speech arguments. While he upheld the limits in that case, citing a 2003 Supreme Court precedent, he left the door open to a future First Amendment challenge. As a Supreme Court Justice, Kavanaugh would have considerably more latitude to join fellow conservatives in redefining First Amendment protections.

Critics see the recent explosion of broad free-speech rulings as evidence of increasing judicial activisma term that describes court rulings that advance an ideological agenda. Historically, thats a charge leveled by the right against progressive judges. But Burt Neuborne, the founding legal director of the Brennan Center for Justice at NYU School of Law, says the conservative Justices are now deliberately using the First Amendment as a deregulatory device. Kavanaughs confirmation to the court, he says, would cement that trend for the foreseeable future.

This appears in the July 30, 2018 issue of TIME.

See the article here:
How the First Amendment Became a Tool for Deregulation | Time

Some notable First Amendment court cases include:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

Schenck v. United States helped define limits of freedom of speech, creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistant as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The Supreme Court reversed a Texas courts decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

The rest is here:
First Amendment - Facts & Summary - HISTORY.com

The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.

Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court inLemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest. For instance, inPrince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

Check outsimilar casesrelated toEngel v. Vitalethat deal with religion in schools and the Establishment Clause of the First Amendment.

Originally posted here:
First Amendment and Religion | United States Courts

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

Read more:
The First Amendment in Five Minutes - Video | Big Think