The First Amendment: What Does it Say? Jeremy Lewis, Huntingdon College Dean's Colloquium, 30 Sep. '09 No Establishment of Religion Freedom of Religion Freedom of Speech Freedom of Association

The Text, Amendment 1 “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.” (submitted 1789, adopted 1791)

The clauses: 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.

Incorporation doctrine How does the bill of rights apply to the states? The fourteenth amendment's due process clause applies federal rights to the states. (sponge analogy) “... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Establishment Clause Contrast with Established churches in Western Europe, laicite' in France, and communism in PRC or USSR Freedom of – and from – religion Separation of government from religion Voluntarism – freedom from coercion No right is unlimited in practice: belief is free but action may be regulated (1940) – Cantwell v CT “acts of the body, [unlike] operations of the mind, are subject to coercion of the laws.” – Jefferson

Freedom of speech UK common law: free speech stopped short of libel or sedition NY colony: but Zenger paper true (1735) Contrast with sedition laws in Europe Madison: no sanction against licentious press Federalists' Alien and sedition acts never challenged in SCOTUS Clear and present danger rule (Schenck, WW1) Smith & McCarran Acts (cold war)

Freedom of Press Swedish act 1776, incorporated to constitution 1949 US: Broadly defined Grosjean rule: no specific taxes on newspapers

Pornography Obscenity, Pornography and offensive speech Regina v Hicklin (UK) tendency to deprave or corrupt – adopted US, Rosen (1896) Roth (1957): "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." Potter Stewart's quip (1964)

Defamation, Slander and Libel Civil or criminal cases Destroying reputation Denigrating with oral untruth Denigrating with written untruth UK: may pay costs of other side NYT v Sullivan (1964): absence of malice aforethought Sedition is unconstitutional Public – private person distinction

Blasphemy Europe: holocaust denial may be illegal Austria: David Irving, 2006 Denmark: blasphemy a crime but unenforced (cartoon of prophet scandal) US: SC struck down NY ban on Rosselini's film, The Miracle. “Not the business of government”

Commercial – political speech US: less protected than political free speech Contrast with Flag desecration: not banned, and amendment not passed Buckley v. Valeo, 424 U.S. 1 (1976), no limit on candidate's personal spending

Freedom of Association Broadly upheld in NAACP v. Alabama, 357 U.S. 449 (1958) Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

Original Intent? Established churches: MA congregational church VA and 4 Southern states: Anglican England, Scotland, Germany: own Italy, Spain: RC Canada: bi-establishment – Continental Congress protested Northern states trend: multi-establishments Patrick Henry: non-preferentialism Jefferson's letter 1802: wall of separation Public School Prayer issue? Public education did not exist in 1791

Modern doctrine: Religion and irreligion "government should not prefer one religion to another, or religion to irreligion". Justice David Souter [for majority], Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994)