Gov: First Amendment Rights


Many people regard the First Amendment as the most important amendment in the Bill of Rights guarantees various rights, including the freedoms of religion, speech, the press, assembly, and petition. These rights are critical to life in a democratic society.

The First Amendment begins with freedom of religion. It reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This statement can be divided into two parts: the Establishment Clause and the Free Exercise Clause. The Establishment Clause guarantees the separation of church and state. However, religious references do exist in government. For example, politicians say “so help me God” when taking the oath of office. The phrase “In God We Trust” appears on U.S. currency. And Congress opens its daily sessions with prayer. The issue of church-state separation has provoked heated battles over the years.

In 1962, the Engle v. Vitale case challenged the recitation of a standard prayer each day in New York’s public schools. In its decision, the Court struck down the practice. The opinion said that state sponsored prayer in schools was a practice wholly inconsistent with the Establishment Clause.

In 1971, the Lemon v. Kurtzman case decided that the practice of using public funds to support private religious schools was unconstitutional. This case established a three-point “Lemon test” to determine if and when a government action violates the Establishment Clause. To be constitutional, a government action must

  • have a secular or nonreligious purpose
  • neither help nor hurt religion
  • not result in an excessive entanglement of the government and religion

The Free Exercise Clause establishes that all people are free to follow the religious practices of their choice. They are also free to follow no religion. If a person’s religious faith conflicts with the law of the land, however,  the law must prevail.

In West Virginia State Board of Education v. Barnette, the Court said that Jehovah Witnesses could refuse to salute the flag. Their right to do so was protected under their First Amendment rights to religious freedom and free speech.

Freedom of speech is the second right listed in the First Amendment. It acts like an anchor for all the other rights in the amendment because they are all linked in one way or another to free expression.


In 1969, Brandenburg v. Ohio case the Court developed a two-part test to determine whether a “clear and present danger” exists that might justify suppressing free speech.

Speech must:

  • directed to inciting or producing imminent lawless action
  • likely to incite or produce such action

Brandenburg a Ku Klux Klan leader was arrested for giving a speech advocating illegal activities.The Court found that the Klan leader’s speech, though containing hateful statements, was unlikely to produce any unlawful actions. Therefore, it did not pass the “clear and present danger” test.

In 1989, the Court expanded this protection to include symbolic speech. Conduct that conveys a message without spoken words.

In Texas v. Johnson case, the court concluded that flag burning as an expression of opinion was protected symbolic speech. The Texas law against flag desecration was a violation of the First Amendment right to free speech.

By specifically protecting the press, the First Amendment makes it clear that free speech covers the media as well as individuals. However, this has not stopped government officials from trying to stop publication of material they dislike.

In Near v. Minnesota, the Court declared that Minnesota officials attempts at prior restraint to keep information from being published as unconstitutional.

Finally, the First Amendment protects the right of the people to peaceably assemble and to petition the government for a redress of grievances. The right to petition the government to solve problems was originally considered the more important of the two. But over time, the right to assemble has taken on a larger role and has been the issue in many cases.

In Hague v. CIO, the Court decided in favor of the labor union. It found that Mayor Hague had applied the permit law unfairly to limit the CIO’s freedom of assembly.



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