How to Understand Your First Amendment Rights II--Freedom of Speech

The first of the ten amendments (or additions to the U.S. Constitution) known as the Bill of Rights, guarantees one of the most fiercely debated rights of American citizens. The First Amendment and the nine that follow were added by the radical politicians in the constitutional convention group, led by Jefferson and Madison, to protect individual rights against a strong central government.

Instructions

Difficulty: Moderate

Things You’ll Need:

• The First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..."

1. "Congress shall make no law..." The federal legislature may not limit rights accepted as natural human rights (inalienable). Although the British parliamentary system afforded a measure of democracy in England, this participation had not extended to the colonies and the revolution had been fought largely based on the radical view of England as a totalitarian monarchy. It therefore became important to the founders to limit the power of a central government and "reserve" a large measure of the power to govern to the individual states where government could be more directly responsible to the people.
2. "...or abridging the freedom of speech," This section refers to the right of the individual to freely speak in society. The Supreme Court has yet to develop a consistent philosophy after two centuries of discussion of this right. Whether it refers to all speech or only to political speech is still being contested in cases argued before the court. What does seem clear, however, is that speech must be public (not between individuals), and it must create some "clear and present danger" such as incitement of a riot or some other threat to peace and safety in order to be considered for prohibition. Often, disorderly conduct statutes and ordinances must be thrown out or re-written whenever there is a major case regarding free speech.
3. "...or (abridging freedom) of the press;" This second part of the free speech section has been equally tested and contested. Reporters and editors cite first amendment freedoms when defending the anonymity of sources and reporting controversy in their publications. Recently, states have begun considering laws requiring journalists to reveal their sources in cases affecting public safety and the common welfare. The limitation of this traditional right of journalists will probably give rise to the next important Supreme Court free speech case.

Tips & Warnings

• The authors of the Bill of Rights (and the U.S. Constitution) wrote in very general terms in order to have a rule that could be applied to all citizens in the nation into the unknowable future. This meant that specific situations were left to be dealt with by the congress and the states and laws interpreted by the courts. Over the years, situations have been judged against the amendment and existing law to determine whether a certain action was legal. These cases (or "case law") help us understand the law in specific situations, refine it and make it relevant today.
• For more information about the balance between free speech and its limits, search for key words "free speech", "first amendment speech", "protected speech". Many political groups have websites explaining their interpretation of this First Amendment right. Information concerning free speech case law can be found on a number of websites, some of which are listed below.
• The rights guaranteed us are ours only so long as we do not use them to interfere with the same rights of other citizens.
• Individual rights are guaranteed by the Bill of Rights to persons in the United States. The same rights are not guaranteed by all governments. The founders believed that these rights were part of being human. Not all governments--or individuals--agree that they belong to all equally. This means that these rights are not guaranteed to us wherever we are in the world just because we're Americans.