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What does the 1st amendment mean -
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.
What is the Significance of the Free Exercise Clause?
How has Speech Been Both Limited and Expanded, and How Does it Apply to You and Your School?
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
What are the Origins and Interpretations of the Right to Keep and Bear Arms?
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Liberty and Security in Modern Times
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
How Does the Fifth Amendment Protect Property?
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Gideon v. Wainwright
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Due Process of Law
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
How Do Due Process Protections for the Accused Protect Us All?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
What is the Scope of the Bill of Rights?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
State and Local Governments
The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant.
The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties.
One of the many points of contention between Federalists, who advocated a strong national government, and Anti-Federalists, who wanted power to remain with state and local governments, was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty.
Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII.
The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791.
What does the First Amendment say about freedom of speech? Clearing up confusion
Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean
The First Amendment does not limit the removal and disqualification powers conferred on Congress by the Constitution.
By Peter D. Keisler and Richard D. Bernstein
About the authors: Peter D. Keisler is an appellate lawyer and former acting attorney general of the United States.Richard Bernstein is an appellate lawyer who clerked for Justice Antonin Scalia.
Front and center in former President Donald Trump’s defense this week will be the argument that convicting him and disqualifying him from holding future office would violate his First Amendment rights—that it would essentially amount to punishing him for speaking his mind. His new lawyer, David Schoen, has warned that convicting Trump “is putting at risk any passionate political speaker, which is against everything we believe in in this country.”
That is wrong. Even if the First Amendment protected Trump from criminal and tort liability for his January 6 exhortation to the crowd that later stormed the Capitol, it has no bearing on whether Congress can convict and disqualify a president for misconduct that consisted, in part, of odious speech that rapidly and foreseeably resulted in deadly violence.
David Frum: Impeachment is working—just not as the Framers expected
To start, let’s examine how breathtaking Trump’s argument is. His advocates are relying on the 1969 Supreme Court case Brandenburg v. Ohio, which held that the First Amendment prohibits criminal liability for advocating violence that is not imminent. According to their theory, Congress could not impeach, convict, remove, or disqualify a president who, like Clarence Brandenburg, spoke at a Ku Klux Klan rally in a white hood, advocated violence, used the N-word repeatedly in declaring that African Americans should be forcibly returned to Africa, and proclaimed that “the Jew” should be sent to Israel.
Nor, under Trump’s argument, could Congress use its powers if the same president burned an American flag on national television to demonstrate contempt for the country he or she had been chosen to lead. Nor could Congress use its powers if the same president wore a swastika while leading a Nazi march through a Jewish neighborhood.
These supposed limitations on Congress’s powers are not merely contrary to common sense; they are without any basis in law. Courts have held that none of those activities can constitutionally be criminalized. But as the University of Missouri law professor Frank Bowman exhaustively demonstrated in The Atlantic in 2019, the impeachment, conviction, removal, and disqualification powers of Congress do not require that the president, or any other federal official, has committed a crime. The phrase “high Crimes and Misdemeanors,” which Article II, Section 4 of the Constitution declares impeachment, conviction, removal, and disqualification to remedy, dates back to 1386. As the nation’s Founders knew, that term had been used repeatedly for four centuries to remove and disqualify officials for heinous conduct that was committed while in office but was not a crime. For example, in a celebrated instance, Massachusetts removed its chief justice in 1774 for accepting a royal salary—an act that was politically disloyal, but not a crime. In 1788, James Madison told the Virginia ratifying convention that abusing the pardon power—also not a crime—would be impeachable. In “Federalist No. 65,” Alexander Hamilton likewise wrote that “the abuse or violation of the public trust” would be impeachable. And, in the more than two centuries since the Constitution was ratified, multiple officials have been impeached, convicted, removed, and disqualified for official conduct that was heinous but not criminal. Indeed, President Andrew Johnson was impeached, and President Richard Nixon would have been impeached and convicted, on certain counts that did not allege a crime. So while the First Amendment might protect a former president from criminal and tort liability for his speech, that same speech can still demonstrate his “abuse or violation of the public trust,” warranting conviction and disqualification by the Senate.
But there is yet another reason why the First Amendment is no defense against impeachment, and that is that a central object of the Constitution was to restrain a government leader who was a “demagogue.” And essential to being a demagogue is engaging in “passionate political” speech.
In the first Federalist Paper, Hamilton wrote, “History will teach us … that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” And he reiterated in “Federalist No. 85,” the last Federalist Paper, that a core aim of the Constitution was to prevent “the military despotism of a victorious demagogue.”
Harry Kalven, Jr.: To try a president
Madison began drafting the Bill of Rights within months of the publication of Federalist No. 85. In what became the First Amendment, Madison built and expanded on the protections already established in English common law. Nothing in that tradition, or in the congressional or ratifying debates on the Bill of Rights, suggested that protections for free speech precluded impeaching, convicting, removing, and disqualifying a senior public official who engaged in the very demagoguery the Constitution was designed to safeguard against.
Accordingly, although the First Amendment’s guarantee of freedom of speech limits the scope of permissible criminal prosecutions and tort suits, it does not limit any of the separate removal and disqualification powers conferred by the Constitution. The most frequently used of these powers is the president’s right to remove senior executive officers—that is, those with administrative or policy-making authority. Every president has exercised this power, often in response to political speech in a policy statement the official had made that would be protected by the First Amendment from criminal and tort liability. No one would argue that a president cannot remove a senior executive officer for that officer’s expression of political views, much less for odious expression that rapidly and foreseeably led to lethal violence.
First Amendment freedom of speech likewise does not limit the Senate’s historic role in the confirmation of senior federal officers. It’s never been suggested—nor could it plausibly be—that the Senate cannot refuse to confirm an executive-branch nominee on the grounds that the nominee previously made odious and dangerous statements. But under the view of Trump and his advocates, if such individuals made such statements after being confirmed, Congress could not use its impeachment and conviction powers to remove and disqualify them. How could the First Amendment permit the Senate to decline to confirm a senior officer based on prior, odious, dangerous speech but then preclude it from removing or disqualifying the same official for making the same (or worse) statements while in office?
There is no serious risk that Congress will abuse its removal and disqualification authority, particularly in the case of presidents. Presidential impeachments are exceptionally rare events, and in the 230 years of American history, none has yet resulted in a Senate conviction. That history confirms that Hamilton was correct when he predicted in “Federalist No. 66” that the requirement that two-thirds of the Senate support conviction would ensure that “the security to innocence … will be as complete as itself can desire.” Congress plainly understands the gravity of its powers in this area and does not easily or lightly exercise them.
Consider that, on December 6, 2017, a resolution was introduced in the House to impeach then President Trump. The resolution was based on his reference to “very fine people” in connection with the by-then-concluded violence in Charlottesville, and other statements the resolution characterized as conveying various forms of bigotry. The House rejected consideration of that resolution on the same day by voting 364–58 to table it. We would have voted with the majority, as those statements did not cause violence or spark an attempt to obstruct the peaceful transfer of power.
At least four things distinguish Trump’s January 6 address. First, it was made to a mob that he had called to Washington, D.C., and then instructed to march to the Capitol. Second, he used words that foreseeably could cause and rapidly did cause violence, including “If you don’t fight like hell, you’re not going to have a country anymore.” His speech resulted in our nation’s first non-peaceful transfer of power in modern times. Third, Trump, during his remarks, repeated lies he had been promoting for weeks about nonexistent voter fraud. Even the First Amendment does not protect “knowing lies” that cause foreseeable violence that interferes with government functions and personnel from criminal or civil liability. Fourth, Trump’s speech was part of a course of conduct to override the 2020 presidential election results outside the court system. That course of conduct included attempts to extort Georgia’s secretary of state to “find” approximately 12,000 more Trump votes, to intimidate Vice President Mike Pence to violate the Constitution and refuse to count Biden electoral votes from six states, and to misuse the Department of Justice to subvert Georgia’s election results.
There is no legal or other basis for inventing unfounded obstacles to conviction and disqualification by Congress of a president for such demagoguery and other misconduct. To the contrary, there are important reasons not to disable Congress in that way. History shows that republics can perish when they give a potential authoritarian a pass without serious consequences. As the wise Justice Robert Jackson explained in his famous dissent in Terminiello v. Chicago (1949), “The choice is not between order and liberty. It is between liberty with order and anarchy without either.” To protect our republic, the Senate may and should convict and disqualify a president whose official misconduct included odious speech that rapidly and foreseeably caused lethal violence.
First Amendment Freedoms
"Freedom of expression" has to do with the freedom to say something and to print something. Over the years, the Supreme Court has expanded the scope of this freedom. Originally, states could restrict expression in certain circumstances. They could restrict expression if it tended to "corrupt public morals." They could restrict it if it tended to "incite to crime." And they could restrict it if it tended to "disturb the public peace." In 1937, the Supreme Court replaced that standard. The court ruled that states could restrict expression only if it presented a "clear and present danger" to the community’s safety. This new standard was first suggested in an earlier case, Schenck v. United States (1919).
Brandenburg v. Ohio (1969) also dealt with freedom of speech. The court ruled that speech could be limited only if harm was "imminent" or "likely." The 1st Amendment also protects symbolic expression. The burning of an American flag is an example of this.
The rule of "no prior restraint" is essential to freedom of the press. It means the government cannot prevent materials from being published. This was reaffirmed in New York Times Company v. United States (1971). In this case, the U.S. government sued two newspapers to prevent their publishing the Pentagon Papers. That was a government study about the Vietnam War. The study was classified as secret. Nevertheless, the court ruled against the government.
The 1st Amendment allows criticism of public figures. One case dealing with this issue was New York Times Company v. Sullivan (1964). The Supreme Court ruled that a public person cannot sue an individual or the media for libel. Libel is the publishing of material that harms a person's reputation. The only exception is if "actual malice" can be shown. Malice is reckless disregard of the truth.
The same principle applies to freedom of assembly. Governments can regulate certain aspects of a public meeting. For example, they can set the time of a meeting. They can set its place. And they can limit its size. But they cannot refuse to grant permission based on what might be said at the meeting.
An American's right to petition the government is guaranteed. That is, any citizen can formally ask the government to do something. The right to criticize the government is also guaranteed. Citizens may enjoy these rights as long as they do not harm others or threaten public safety.
Why a Constitution?
The need for the Constitution grew out of problems with the Articles of Confederation, which established a “firm league of friendship” between the States, and vested most power in a Congress of the Confederation. This power was, however, extremely limited—the central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the States. Crucially, it could not raise any funds itself, and was entirely dependent on the States themselves for the money necessary to operate. Each State sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each State getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual.
A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the State legislatures in 1787. In May of that year, delegates from 12 of the 13 States (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.
The Constitutional Convention
A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the States.
Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each State, and the New Jersey plan, which gave each State an equal vote in Congress. The Virginia Plan was supported by the larger States, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the States apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.
The founders also took pains to establish the relationship between the States. States are required to give “full faith and credit” to the laws, records, contracts, and judicial proceedings of the other States, although Congress may regulate the manner in which the States share records, and define the scope of this clause. States are barred from discriminating against citizens of other States in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other States for trial.
The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. In modern times, amendments have traditionally specified a time frame in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a State equal representation in the Senate without that State’s consent.
With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Gouverneur Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.
The process set out in the Constitution for its ratification provided for much popular debate in the States. The Constitution would take effect once it had been ratified by nine of the thirteen State legislatures; unanimity was not required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.
James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers’ intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people.
The States proceeded to begin ratification, with some debating more intensely than others. Delaware was the first State to ratify, on December 7, 1787. After New Hampshire became the ninth State to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789 as the date to begin operating under the Constitution. By this time, all the States except North Carolina and Rhode Island had ratified—the Ocean State was the last to ratify on May 29, 1790.
The Bill of Rights
One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several States, however, the ratification debate in some States hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four States ratified the Constitution but at the same time sent recommendations for amendments to the Congress.
James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.
The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
The Second Amendment gives citizens the right to bear arms.
The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.
The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause.
The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.
The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which one is charged, and to confront the witnesses brought forward by the government. The amendment also provides the accused the right to compel testimony from witnesses, as well as the right to legal representation.
The Seventh Amendment provides that civil cases preserve the right to trial by jury.
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.
The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated.
The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the States, to either the States or to the people.
Learn more about the Constitution
As Americans, we pride ourselves on our Constitution. In truth, the Constitution of the United States of America is the heart of our democracy and freedom.
If you have been put in a situation where your constitutional rights have been violated, you may want to know what you should do in order to remedy or address those violations. It is very likely that an attorney will be able to help you during this process.
To that end, the lawyers at Stoy Law Group, PLLC are here to help. Our attorneys are here to help you stand up for the rights guaranteed to you under the Constitution. As a fundamental principle of our practice, we are committed to seeking out justice for our clients.
This article specifically addresses your First Amendment rights. If you have questions about this article or questions regarding civil rights that are not addressed in this article, we are happy to speak with you over the phone or in person for an evaluation.
Do not delay in protecting your rights—contact us today!
What are my First Amendment rights?
Knowing your rights is key in any civil rights case. The key to knowing your rights is to read the text of the First Amendment, which can be understandably confusing at times.
The First Amendment states:
“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.”
In essence, the First Amendment (hereinafter, the “amendment”) grants four significant freedoms to the People.
First, the amendment grants freedom of religion. This means that the government cannot: (i) establish a government religion, (ii) compel the People to practice any religion, or (iii) prevent the People from practicing any religion. Within this right, the First Amendment guarantees that there must be separation of Church and State.
This essentially means that no religious influence shall be allowed in the making, enacting, or enforcing of the laws of the United States.
Furthermore, the amendment grants the People freedom of speech.
At its core, freedom of speech is the right to express opinions without being punished or being subjected to censorship because of those opinions. The government cannot prevent someone from expressing an opinion that the government does not agree with.
For example, as much as a president may not like criticism that he or she receives from the media, they cannot shut down or punish the media for those expressed opinions, so long as the opinions are not objectively defamatory.
Importantly, free speech includes verbal and non-verbal communications.
The First Amendment also gives the People the right to peaceably assemble. This means that the People have a right to join together (e.g., rallies, meetings, etc.) to show support for or opposition to an issue of public policy, among other topics.
The People can also petition (i.e., complain to) the government without fear of punishment.
Are there any kinds of speech that are not protected by the First Amendment?
It is a common belief and misconception that all speech is protected by the First Amendment. This is why it is important to know which categories of speech are not protected by the First Amendment.
The Supreme Court of the United States has laid out exceptions to First Amendment protections. According to the Supreme Court, some types of speech have no protection under the First Amendment. Additionally, some types of speech have limited protection.
For example, it is not protected speech to walk into a crowded movie theatre and yell “FIRE” or “THERE’S A BOMB,” as these types of speech are likely to incite panic and cause injury to other individuals.
What types of speech are completely unprotected by the First Amendment?
Certain categories of speech are completely unprotected by the First Amendment. That list includes (i) child pornography, (ii) obscenity, and (iii) “fighting words” or “true threats.”
Child Pornography is any material that depicts any sexual conduct involving children (i.e., a minor). The child pornography does not have to be obscene in order to be unprotected by the First Amendment.
In fact, there is no constitutional right to possess child pornography even if the possession occurs in an individual’s home.
No actual harm needs to be shown in order for obscenity speech to be illegal. However, this does not mean that this category of speech is not complicated. That is because determining whether speech should be considered “obscene” is an analysis often determined by impartial judges and juries. Determining whether something is obscene will depend on the subjective views of every individual involved.
The Supreme Court has determined that fighting words inflict injury just by their very utterance. As such when someone uses fighting words, they can be punished under law, and this punishment would not violate the First Amendment.
In order for this speech to be unprotected by the First Amendment, the speech must be a threat that is an immediate breach of peace.
For example, it is illegal to walk up to a stranger on the street and tell them that you are going to murder them or cause them serious bodily injury.
What types of speech can the government place restrictions on?
In order for the government to place any restriction on speech other than child pornography, obscenity, and fighting words, a “strict scrutiny” test/ analysis must be applied by the courts.
This means that the government must show that there is
(i) a “compelling government interest” in placing a restriction on a particular type of speech and
(ii) that the restriction is “the least restrictive means” to further the government interest.
One common example is that the government can prevent the publication of locations of troops in war zones, as publishing this information could endanger the troops.
However, remember that this is the highest level of scrutiny. As such, it can be very difficult for the government to prove that the speech should not be protected by the First Amendment.
If you believe that the government has wrongfully placed a restriction on your speech, you should contact an experienced civil rights attorney. Your attorney will be able to assist you in proving that the strict scrutiny test has not been met.
Why Should I get an Attorney?
Many people do not know what to do if they feel that their First Amendment rights were violated.
If your First Amendment rights have been violated, you should immediately contact a civil rights attorney. Your attorney will be able to guide you through the process of evaluating the violation and addressing the remediation process.
There have been many court cases that center on the First Amendment.
As a bit of background, the First Amendment was ratified in 1791, and it has been the subject of many different controversies over its long lifetime. It is essential that you hire an attorney who is very familiar with civil rights issues and the history of First Amendment rights in the United States. This expertise will be a great advantage for you in your quest for justice.
The lawyers at Stoy Law Group, PLLC have experience litigating civil rights cases. We use this experience to advocate for our clients. We offer free case consultations to individuals who are attempting to determine what their legal rights are.
During this case consultation, we will be able to help you assess the situation so that you can decide what you should do next.
Do First Amendment issues come up in the news?
The First Amendment has been a hot button issue for a number of years, and recently it has made headlines. In fact, many people claim that President Donald Trump has violated the First Amendment by blocking Twitter users from his Twitter page.
The group that claims that President Trump has violated the First Amendment by blocking Twitter users states that Twitter functions as a public forum. They have compared the President’s Twitter account to a town hall meeting. They believe that President Trump violated the First Amendment because he has made it impossible for the individuals he has blocked to speak directly to him, which they claim is prohibiting access to a public forum.
There are some people who believe that the President has not violated the First Amendment. They argue that the Twitter account that the President blocked individuals from should not be classified as a public forum. This is because the account was created by and operated by the President before he took office.
Additionally, the account is not the President’s official account. There is a separate account that was created by the White House for the President. Whether a Court will determine that the President violated the First Amendment is still up for debate.
However, it has become clear that the First Amendment can become a hot topic overnight, even after hundreds of years in existence.
Has freedom of religion been in the news?
There have been several cases in the news recently concerning freedom of religion.
For example, a New York police officer is, as of the writing of this article, suing the New York Police Department (“NYPD”) for violating his First Amendment right to freedom of religion. The NYPD has a “no beard” policy. The plaintiff police officer refused to shave his beard during a religious fasting month. The NYPD claims that officers cannot have long facial hair because long facial hair can be used to overcome officers in physical confrontations.
In addition there are federal guidelines for gas masks that prevent officers from having long facial hair. The officer was ultimately suspended when he refused to shave his facial hair.
Another freedom of religion question that has been in the news over the past year concerns the Affordable Care Act.
Many employers claimed that their First Amendment right to freedom of religion was violated because the Affordable Care Act requires employers to provide employees with insurance coverage that includes birth control benefits.
The employers, most notably Hobby Lobby, claimed that birth control was against their religious views and that they should not be forced to provide these benefits to their employees.
What other civil rights cases can an attorney help me with?
There are numerous different civil rights issues that can be litigated. Below is a list of different cases that involve civil rights issues:
- Racial Profiling
- Wrongful Arrests
- Wrongful Convictions
- Hate Crimes
- Jail and Prison Abuse
- Jail and Prison Conditions
- Voting Rights
- Police Misconduct
Some of these civil rights cases can become very complicated.
The attorneys at Stoy Law Group, PLLC can assist you in each of these matters. We are ready to assist you in your civil rights case regardless of how complex the issues are.
We have experience litigating civil rights issues and are ready to use this experience to help you in your case.
Is your speech protected by the First Amendment?
by Lata Nott, Executive Director, First Amendment Center
Can your bosses fire you for stating opinions they don’t agree with? Can your school keep you from starting a controversial club? Can a website or newspaper refuse to publish your opinion?
Freedom of speech is a very well-known but often misunderstood concept. Americans see free speech as an important right–-our last survey showed that 86% of Americans think that free speech is more important than protection from offense. But while it’s common for us to assert our right to express our opinions, it’s easy to forget that not all of our speech is legally protected by the First Amendment.
So when does the First Amendment protect your speech from censorship or punishment? Ask yourself four questions.
First of all, is it speech?
Freedom of speech doesn’t just apply to the words that come out of your mouth. It applies to a number of different forms of expression, including:
At least one federal appeals court has found that liking something on Facebook qualifies as speech. Some types of computer code may be considered speech, but the limits of that is still an open question.
If it is speech—is the government censoring or punishing it?
The First Amendment only protects your speech from government censorship. It applies to federal, state, and local government actors. This is a broad category that includes not only lawmakers and elected officials, but also public schools and universities, courts, and police officers. It does not include private citizens, businesses, and organizations. This means that:
- A private school can suspend students for criticizing a school policy;
- A private business can fire an employee for expressing political views on the job; and
- A private media company can refuse to publish or broadcast opinions it disagrees with.
If the government is censoring your speech–does your speech fall into an unprotected category?
There are several categories of speech that are not protected by the First Amendment at all.
Click on a category to learn more about it.
True threats are not protected by the First Amendment, but the legal definition of what constitutes a true threat is somewhat unclear.
The Supreme Court has said that a statement can be a true threat even if the speaker had no intent of actually carrying out the threat. What matters is that the speaker intended to place his victim in fear of bodily harm or death.
So is a threat a “true threat” if the speaker subjectively intended to intimidate or threaten the recipient? Or is it a true threat if the recipient of the threat reasonably believed it was a threat? Different courts have different ways of approaching this assessment so the answer to this question might depend on where you are.
Defamation means false statements that harm another person’s reputation. Slander and libel are different types of defamation: libel generally refers to something you wrote, while slander refers to something you said.
If you say or publish something false that harms the reputation of a public figure (such as a politician, celebrity, or business leader), in order to succeed in a lawsuit against you, they will have to prove that you acted with actual malice (meaning that you knew the statement was false, or you acted with a reckless disregard for the truth) .
In contrast, if you say or publish something false that harms the reputation of a private figure, they will have to prove that you acted negligently (meaning that you didn’t take reasonable care to find out the truth, i.e. you didn’t do enough research or fact-checking). This is much easier to prove than actual malice.
To learn more about libel, see our primer on the subject.
While obscenity is not protected by the First Amendment, depictions of nudity, and many depictions of sex, do not meet the legal definition of obscenity. The actual legal definition of obscenity follows these guidelines set up by the Supreme Court:
- Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the “prurient interest” (meaning a morbid, degrading and unhealthy interest in sex)?
- Does the work depict or describe, in a clearly offensive way, an act of sexual conduct??
- Does the work, taken as whole, lack any serious literary, artistic, political, or scientific value?
The First Amendment does not protect speech that leads to imminent lawless action.
- This kind of speech has to be directed towards a specific person or group;
- It has to be a direct call to commit immediate, lawless action; and
- There must be an expectation that the speech will in fact lead to lawless action.
A more general statement (i.e., “people should rise up one of these days”) would not fall into this category of speech.
Copyright law creates property rights for the creators of certain works. If you copy another person’s writing, speech, art, music, or choreography without permission, that person can sue you for “trespassing” on their property. (And then the court, a government actor, can order you to stop your copyright infringement and impose financial penalties on you.)
Copyright law limits free expression in order to give people an incentive to create more expressions. If you could freely copy someone else’s work without paying for it, there would be no incentive for anyone to create new material. Why take the time to create a product if you will receive no reward? However, overly rigid copyright laws would reduce the public’s access to information. Copyright law attempts to resolve this tension by distinguishing between expression and ideas.
Copyright law does not protect the ideas, facts, methods of operation or scientific principles contained in an author’s expression. This information is considered public. However, it does protect the author’s particular way of expressing ideas and facts.
Additionally, copyright law has an exception for “fair use” of someone else’s expression. Courts weigh four factors when they’re determining whether your copying of someone else’s work to create your own work was “fair use”:
- They look at the purpose of the work you created. If the new work was created to make a profit, a court would be less likely to find it “fair use” than if it was created for non-profit educational purposes. But there are exceptions to this: parodies are a good example. Many parodies have been accorded a fair-use privilege even though they were created for commercial profit.
- They consider the “nature of the copyrighted work.” Generally, works of fiction tend to receive more protection than works of nonfiction.
- They ask how much your new work takes from the copyrighted material. Usually the more material taken, the less likelihood that the copying will be considered “fair use.”
- Finally, the courts will ask whether your new work has harmed the commercial value of the copyrighted work.
If your speech does not fall into one of the unprotected categories–do you fall into a special category?
The government generally has greater power to dictate speech policies when it acts in certain capacities, such as educator, employer or jailer.
Click on a category to learn more about it.
Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. But two legal principles limit their rights. First, minors do not possess the same level of constitutional rights as adults. Second, a school’s interest in educating students in a safe environment can sometimes outweigh freedom of speech.
A school has the right to discipline or censor a student’s speech at school or at a school-sponsored activity if that speech substantially disrupts the school environment or invades the rights of others.
Whether a school can punish a student for speech made off-campus (such as something posted to Facebook) is a complicated and unsettled legal question. The Second,Seventh, and Eighth Circuits have found that schools can punish off-campus speech if it was “reasonably foreseeable” that the speech in question would reach the school community. Similarly, the Fourth Circuit has found that a school can sanction your off-campus speech if there is a “sufficient nexus” between the speech and the school (for example, when a student created a website ridiculing other students, the Fourth Circuit concluded that she knew that a negative dialogue would take place that would disrupt the school). Other Circuits haven’t established clear guidelines for when schools can discipline off-campus speech.
Private employers have the right to fire or discipline employees for their speech (remember, the First amendment only applies to government censorship). But when the government is your employer, things get more complicated. Sometimes the government needs to be able to discipline or limit the speech of its employees in order to keep its agencies and offices running efficiently. At the same time, government employees shouldn’t be deprived of the free speech rights that other citizens enjoy. In an attempt to balance these two interests, the Supreme Court has developed a full body of law on government employee speech:
- If a government employee’s speech arose out of their official duties, that speech will not be protected by the First Amendment.
- If the government employee’s speech did not arise out of their official duties, the First Amendment might protect their speech if:
- The speech was on a matter of public concern;
- The government employee’s interest in commenting on this matter of public concern outweighs the employer’s interest in regulating the speech; and
- The government employee’s speech was a substantial factor in whatever penalty they received (termination, suspension, etc.).
Prisoners do not have the same level of First Amendment rights as other citizens. The Supreme Court established that when a prison regulation infringes on an inmate’s First Amendment rights, it’s constitutional as long as the regulation is reasonably related to a legitimate and neutral interest of the prison.
In deciding this, a court will consider:
- Whether the prison regulation is applied in a neutral manner, and doesn’t discriminate against prisoners based on the content of their expression;
- Whether the regulation leaves open alternative ways for the prisoner to express him or herself;
- Whether accommodating the prisoner’s speech rights would negatively impact other inmates, guards, and the prison’s resources; and
- Whether there is an alternative to the regulation that would not restrict the prisoner’s rights as much. (The existence of easy alternatives can show that the regulation was an “exaggerated response” to prison concerns.
For more information about prisoners’ First Amendment rights, the the Jailhouse Lawyer’s Handbook is an invaluable resource.
Note that this primer should not be taken as legal advice, but as an effort to simplify what can be a very complicated area of the law. If you wish to pursue a First Amendment legal action, you should contact an attorney or legal services group in your area.
To learn more about your First Amendment rights, check out our First Amendment FAQs.
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