first amendment essay topics

91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

• Cyberbullying and the First Amendment Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to […]
• First Amendment: Religion and Education The right to education is protected by human rights legislation guaranteeing to adapt education to the requirements of individuals and communities that are evolving and to the needs of students in their varied socio-cultural contexts.
• Vaccination in the Context of the First Amendment The purpose of this paper is to review the dilemma in the context of the First Amendment and the free exercise of religion.
• The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
• Pornography or Obscenity and the First Amendment Amendment 1 of the US Constitution states that the “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, […]
• The First Amendment – Religion and Expression In the ruling of Skokie case, the Supreme Court of the United States ruled in favor of the residents of Skokie, although it still allowed the planned marching by the NSP to go no.in this […]
• First Amendment Right of Free Speech in the USA In this case, it is seen that the Public Law of New Hampshire which bans under punishment “any offensive, derisive or annoying word to any other person who is lawfully in any street or other […]
• Free Speech in the First Amendment The first amendment of the Constitution states, “Congress will 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 […]
• Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
• Violent Video Games and First Amendment Protection Violent games appear to be a legitimate type of media with its right for free expression; however, minors should also be protected from the violent and sexual content of video games because they lack media […]
• First Amendment in the US Modern Justice System Also, the paper discusses the significance of the verdict passed by the Supreme Court in each case and their relevance or influence on the rights of American citizens today.
• Does Title VII Conflict With the First Amendment The government is not justified to disallow religious expression at workplaces by the Establishment Clause of the First Amendment. Title VII statute and the First Amendment both provide protection for an employee’s religious rights.
• Founding Fathers Religion: The First Amendment Role in the Church-State Separation As a result, a resolute transformation from the Puritan Fathers in 1639, who uphold the religion as a foundation of any society, to the Founding Fathers in 1787, who accepted freedom of religion as an […]
• Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
• First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
• What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
• Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
• On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
• The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
• US Constitution Reflections on the First Amendment Paper The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.
• First Amendment Rights and Access to Opinions
• Censorship and the First Amendment: The American Citizen’s Right to Free Speech
• The First Amendment and Its Impact on Education
• Should the First Amendment Stop Protecting Hate Speech
• The First Amendment Speaks on the Freedoms of Religion
• Interpreting the First Amendment of the Constitution
• Should Racist Speech Enjoy Protection Under the First Amendment
• How the First Amendment Rights Have On Advancing Democracy
• The First Amendment and the Constitutional Freedoms in American Schools
• The First Amendment and Conservative Rulings of the Supreme Court
• Ever-Changing Freedoms: The First Amendment of the American Constitution and Challenges It Faces
• How the First Amendment Protects Freedom of Speech
• The First Amendment and Its Impact on Media
• Case Problems Involving the First Amendment
• The First Amendment and Its Legal Constrains
• Banning Books Goes Against the First Amendment
• Federal District Court Alleging First Amendment Violations
• The First Amendment and Label Drug Promotion
• Discussing Three Freedoms From the First Amendment
• The First Amendment and Its Impact on Language
• Public Safety Outweigh Petitioner’s First Amendment Right
• The Ambiguity and Confusion From the First Amendment
• The First Amendment and the American Judiciary
• Civil Rights and First Amendment
• Cyberbullying and the First Amendment
• Does the First Amendment Affect Your Livelihood
• The First Amendment and Right to Privacy
• Net Neutrality and the First Amendment: Who Has the Right to Free Speech
• Neo-Nazis and Their First Amendment Rights
• Public High School Students Have the First Amendment Right
• Espionage Act Conflicts First Amendment Rights in Wikileaks Case
• Comparing Our First Amendment Rights to the Rights of Those in George Orwell’s 1984
• The Role and Importance of the First Amendment of the Constitution
• First Amendment Rights and Pragmatic Solutions
• The First Amendment: History and Development
• First Amendment Rights, Privacy, and the Paparazzi
• The First Amendment Constitution on the Freedom of Expression
• The Relation Between the First Amendment and Music Censorship
• The First Amendment Anti-discrimination Law
• Does the First Amendment Protect False Campaign Speech
• What Is the Main Purpose of the First Amendment?
• How Free Speech Under the First Amendment Developed?
• What Is the Connection Between Anti-semitism and the First Amendment?
• Does Banning Books Violate the First Amendment?
• Was the First Amendment to the US Constitution Prohibition?
• What Are the First Amendment Issues?
• Does the First Amendment Guarantee the Right of American Citizens to Freedom?
• How Does Censorship Conflict With First Amendment Freedom of Speech?
• What Rights Does the First Amendment Guarantee to Citizens?
• Does the First Amendment Govern Cyberbullying?
• Did President Hoover Limit the First Amendment Rights of the Bonus Army?
• What Are the First Amendment Freedoms?
• Does the Espionage Act Conflict With First Amendment Rights?
• What Changes Did the First Amendment Make to the Constitution?
• How Does the First Amendment Guarantee Freedom of the Press?
• What Is the Significance of the First Amendment to Civil Society?
• What Is the Work of the First Amendment Committee?
• How Does the Supreme Court Interpret the First Amendment?
• What Religious Cases Does the First Amendment Control?
• How Are First Amendment Rights Applied and Limited?
• Does the First Amendment to the US Constitution Regulate Ever-Changing Freedoms?
• How Do First Amendment Rights Affect the Development of Democracy?
• What Is the Interpretation of the First Amendment to the Constitution?
• Does the First Amendment Affect Your Livelihood?
• Does the First Amendment Limit the Government’s Power?
• What Inappropriate Words Should Be Removed From the First Amendment?
• Does Public Safety Override a Plaintiff’s First Amendment Right?
• Should Rap Songs Be Protected by the First Amendment?
• Does the First Amendment Protect False Campaign Speech?
• Should Racist Speech Enjoy Protection Under the First Amendment?
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115 First Amendment Essay Topic Ideas & Examples

Inside This Article

The First Amendment of the United States Constitution guarantees the right to freedom of speech, religion, press, assembly, and petition. This fundamental right is essential to a democratic society, allowing individuals to express their opinions, beliefs, and ideas without fear of government censorship or retaliation.

If you are studying the First Amendment in school or simply interested in exploring the various issues it encompasses, here are 115 essay topic ideas and examples to help you get started:

• The history and significance of the First Amendment
• The impact of the First Amendment on American society
• The limitations of the First Amendment
• The evolution of free speech rights in the United States
• The role of the First Amendment in protecting political dissent
• The intersection of free speech and hate speech
• The First Amendment and social media
• The First Amendment and campus speech codes
• The First Amendment and government surveillance
• The First Amendment and national security
• The First Amendment and religious freedom
• The First Amendment and the separation of church and state
• The First Amendment and freedom of the press
• The First Amendment and the role of the media in a democracy
• The First Amendment and censorship
• The First Amendment and obscenity laws
• The First Amendment and commercial speech
• The First Amendment and campaign finance laws
• The First Amendment and the right to protest
• The First Amendment and the right to assemble
• The First Amendment and the right to petition the government
• The First Amendment and freedom of expression in the arts
• The First Amendment and academic freedom
• The First Amendment and the rights of students in public schools
• The First Amendment and workplace speech rights
• The First Amendment and the right to privacy
• The First Amendment and the right to anonymous speech
• The First Amendment and the right to protest on public property
• The First Amendment and the right to access government information
• The First Amendment and the right to a free and fair trial
• The First Amendment and the right to legal representation
• The First Amendment and the right to access the courts
• The First Amendment and the rights of journalists
• The First Amendment and the rights of whistleblowers
• The First Amendment and the rights of public employees
• The First Amendment and the rights of prisoners
• The First Amendment and the rights of immigrants
• The First Amendment and the rights of people with disabilities
• The First Amendment and the rights of LGBTQ individuals
• The First Amendment and the rights of religious minorities
• The First Amendment and the rights of racial minorities
• The First Amendment and the rights of women
• The First Amendment and the rights of children
• The First Amendment and the rights of the elderly
• The First Amendment and the rights of the homeless
• The First Amendment and the rights of individuals with mental illness
• The First Amendment and the rights of individuals with substance abuse disorders
• The First Amendment and the rights of individuals with physical disabilities
• The First Amendment and the rights of individuals with intellectual disabilities
• The First Amendment and the rights of individuals with developmental disabilities
• The First Amendment and the rights of individuals with sensory disabilities
• The First Amendment and the rights of individuals with communication disabilities
• The First Amendment and the rights of individuals with learning disabilities
• The First Amendment and the rights of individuals with cognitive disabilities
• The First Amendment and the rights of individuals with emotional disabilities
• The First Amendment and the rights of individuals with behavioral disabilities
• The First Amendment and the rights of individuals with social disabilities
• The First Amendment and the rights of individuals with mental health disabilities
• The First Amendment and the rights of individuals with substance abuse disabilities
• The First Amendment and the rights of individuals with physical health disabilities
• The First Amendment and the rights of individuals with sensory health disabilities
• The First Amendment and the rights of individuals with communication health disabilities
• The First Amendment and the rights of individuals with learning health disabilities
• The First Amendment and the rights of individuals with cognitive health disabilities
• The First Amendment and the rights of individuals with emotional health disabilities
• The First Amendment and the rights of individuals with behavioral health disabilities
• The First Amendment and the rights of individuals with social health disabilities
• The First Amendment and the rights of individuals with substance abuse health disabilities

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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“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.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

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 .

The Schenck decision 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 resistance 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 administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s 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.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Home — Essay Samples — Law, Crime & Punishment — American Law — First Amendment

Essays on First Amendment

The First Amendment of the United States Constitution guarantees the freedom of speech, religion, and the press, as well as the right to assemble and petition the government. As such, it is a crucial topic for discussion and exploration in essays. When choosing a topic for a First Amendment essay, it's important to consider the significance of the issue, the relevance to current events, and the potential for in-depth analysis.

The First Amendment is the cornerstone of American democracy, protecting the fundamental rights of individuals and the press. It has been a subject of debate and controversy throughout history, shaping laws, policies, and societal norms. Understanding the complexities of the First Amendment is essential for citizens, policymakers, and legal professionals.

When selecting a topic for a First Amendment essay, it's essential to consider both the wide-ranging impact of the Amendment and its specific applications in different contexts. It's also important to choose a topic that aligns with personal interests and expertise. Researching current events, legal cases, and scholarly articles can help identify compelling and relevant topics for exploration.

Recommended First Amendment Essay Topics

Below is a detailed list of recommended First Amendment essay topics, divided into categories for ease of reference:

Freedom of Speech

• The impact of social media on freedom of speech
• Hate speech and the limits of free expression
• The role of free speech in academic settings
• The First Amendment and government censorship
• Artistic expression and freedom of speech

Freedom of Religion

• Religious freedom and the workplace
• The intersection of religious beliefs and public policy
• Challenges to religious freedom in a diverse society
• The use of religious symbols in public spaces
• Religious exemptions and the First Amendment

Freedom of the Press

• The role of the press in holding government accountable
• Press freedom and national security concerns
• The impact of digital media on press freedom
• Media bias and the First Amendment
• The future of journalism and First Amendment protections

>Right to Assemble and Petition

• The history and impact of protest movements in the United States
• The use of technology in organizing and participating in protests
• The challenges of balancing public safety and the right to assemble
• The role of petitioning in influencing government decision-making
• The global implications of the right to assemble and petition

Choosing a topic for a First Amendment essay requires thoughtful consideration and research. By selecting a topic that aligns with personal interests and addresses current issues, writers can produce compelling and relevant essays that contribute to the ongoing conversation about the First Amendment and its impact on society.

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First Amendment Essay Examples

The First Amendment is one of the most important amendments to the U.S. Constitution, and it guarantees several fundamental rights, including the freedom of speech, religion, assembly, and the press. Writing a 1st Amendment essay can be a great way to explore the significance of these rights and their impact on American society.

When writing an essay on First Amendment, thesis statement is an important part to pay special attention to as it reflects your perspective on the topic. Your thesis should outline the main points you’ll be discussing in your essay, and it should be supported by evidence and examples.

A well-written First Amendment essay should demonstrate your understanding of this essential constitutional provision and its impact on American life. By exploring the history and significance of the First Amendment, you can gain a deeper appreciation for the freedoms that are so vital to our democracy.

If you’re looking for First Amendment essay examples, WritingBros can help you get started. In this section you can find essays on different topics related to this broad theme, such as the history of the 1st Amendment, its impact on American politics and culture, and its relationship to other constitutional rights, as well as many others.

The Freedom Of Religion And Why Is The First Amendment Important

First Amendment “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise 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...

• American Constitution
• First Amendment

Life Without The First Amendment 

My, I and my family would be one of many who would be hugely impacted if our 1st amendment freedom of religion was taken away. We are one of Jehovah's Witnesses and there are currently 13,036 congregations (or places of worship) around the country. In...

First Amendment Cases: Clear And Present Danger

The First Amendment expresses that Congress will make no law regarding a foundation of religion, or forbidding the free exercise of; or compressing the ability to speak freely, of the press; or the privilege of the individuals quietly to collect, and to appeal to the...

A Case Study of the American Right to the Freedom of Speech

One of our rights in the United States is freedom of speech, which is guaranteed by the First Amendment. The First Amendment of the United States Constitution, “...prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on...

• Freedom of Speech

The Importance of the First Amendment to the U.S. Constitution

Thesis statement The first amendment is important because it does not let the government arrest you for expressing your beliefs because it is a right given by God to protect the people. Amendment I Congress shall make no laws respecting an establishment of religion, or...

• Constitution

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First Amendment to the U.S. Constitution and Facts About It

The First Amendment is represented and interpreted differently by the American people, the judicial branch, and state governments. What is the First Amendment? It is an amendment that gives the right to American citizens to have freedom of assembly, press, religion, and speech. This is...

• Role of Government

Protection of Free Speech As Seen in the First Amendment

The First Amendment, proposed in 1789 by declared ‘Father of the Constitution’ James Madison as part of the U.S. Bill of Rights has perpetuated itself as a fundamental component in the governing and ruling of America to this day, acting as a principal reference point...

• Free Speech
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Best topics on First Amendment

1. The Freedom Of Religion And Why Is The First Amendment Important

2. Life Without The First Amendment 

3. First Amendment Cases: Clear And Present Danger

4. A Case Study of the American Right to the Freedom of Speech

5. The Importance of the First Amendment to the U.S. Constitution

6. First Amendment to the U.S. Constitution and Facts About It

7. Protection of Free Speech As Seen in the First Amendment

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First Amendment

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices . It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government .

Learn more...

Primary tabs

Amendment i.

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.

Wex Resources

The establishment clause.

Establishment Clause

Lee v. Weisman (1992)

Van Orden v. Perry (2005 )

Free Exercise Clause

State Action Requirement

Free Speech

Captive Audience

Prior Restraint

Absolute Privilege

Advocacy of Illegal Action

Fighting Words

Commercial Speech

Government Speech

Brandenburg Test

Schenk v. United States (1919)

Gitlow v. New York (1925)

Roth v. United States (1957)

Texas v. Johnson (1989)

Near v. Minnesota (1931)

New York Times v. Sullivan (1964)

Peaceful Assembly

Unlawful Assembly

Redress of Grievances

Research & Learn

Table of contents, first amendment overview essays.

The essays included in this collection give overviews of some of the most important areas of First Amendment law and scholarship. FIRE hopes that these essays explain the basics of First Amendment case law and jargon in a succinct, yet informative manner. This collection will expand on a regular basis, so please check back for more content.

Chilling Effect

The "chilling effect" refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action. Read more about the chilling effect .

COVID-19 Emergency Measures and the First Amendment

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people. . . No matter one’s political beliefs, this time has also placed significant strains on First Amendment freedoms. Read more about COVID-19 emergency measures and the First Amendment .

Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. Read more about defamation .

Fighting Words

The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.” Read more about fighting words .

Freedom of the Press

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content. Read more about freedom of the press .

K–12 Expression and the First Amendment

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school, school officials can regulate speech more as educators than governments can as sovereign. Read more about K–12 expression and the First Amendment .

Nude Dancing

The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review. Read more about nude dancing and the First Amendment.

Overbreadth

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded. Read more about overbreadth . 

Secondary Effects Doctrine

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values. Read more about the secondary effects doctrine . 

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Issues Related to Speech, Press, Assembly, or Petition  Archives

• Abortion Protests

The competing right under Roe v. Wade of women’s access to abortion clinics must be balanced against the First Amendment rights of abortion protesters.

• Academic Freedom

Academic freedom is a First Amendment principle that teachers, students and educational institutions should be able to pursue knowledge without government interference.

• Access to Courtrooms

Although the First Amendment doesn’t mention freedom of access to courtrooms, the Supreme Court has held that the public right to attend criminal proceedings is implied.

• Actual Malice

Actual malice is the legal standard the Supreme Court uses to protect the media in libel cases in determining when public officials or figures may win damages in lawsuits.

• Ad Hoc Balancing

In First Amendment law, ad hoc balancing involves judging cases on their unique facts, rejecting formulaic tests to determine whether speech is protected or not.

• Advocacy of Illegal Conduct

Mere advocacy of illegal conduct was not protected by the First Amendment until Brandenburg v. Ohio (1969), which created the incitement to imminent lawless action test.

• Affirmative Action

Two Supreme Court cases involving affirmative action relied in part on the First Amendment to protect a university’s admission rights and to uphold use of racial preferences.

• Alcohol Advertising

Alcohol advertising is protected under the First Amendment as long as it does not promote unlawful activity and is not misleading, but it can be regulated.

Although the First Amendment to the U.S. Constitution makes no distinction between citizens and noncitizens, the Court has not always treated these groups the same.

• Anonymous Speech

The Supreme Court has protected anonymity under the First Amendment, but it has balanced this protection against competing interests, notably in the area of political activity.

• Art Censorship

Artistic expression has historically been subject to some measure of censorship in the United States. The First Amendment provides significant protection to artistic expression.

• Attorney Advertising

Bar regulators attempt to protect the public from misleading attorney ads while ensuring that attorneys retain a measure of First Amendment free expression protection.

• Attorney Speech

Lawyers do not forfeit all of their free-speech rights as members of a profession, but their speech rights are limited in many ways. Rules of professional conduct adopted by the supreme courts in each state, for example, prohibit lawyers from making false statements about judges, writing legal papers that are deemed “frivolous,” engaging in speech that disrupts the tribunal or engaging in direct, face-to-face solicitation of prospective clients, with a few exceptions.

• Attorney speech inside a courtroom

Whether judges can prohibit attorneys from wearing pins or symbols with a political message in a courtroom is an unsettled First Amendment issue highlighted recently in Las Vegas.

• Bad Tendency Test

The bad tendency test became the most influential standard used by courts to determine whether criticism of the government during World War I was protected by the First Amendment.

• Ballot Access

Ballot access refers to procedures regulating how candidates will be presented to voters in elections. Ballot access continues to be the subject of First Amendment debate.

• Ballot selfies

Ballot selfies refer to photos people take of their voting ballots and then display on social media or elsewhere.  Many states have sought to regulate or outright prohibit the display of ballot selfies, thus presenting a pristine First Amendment issue.  States that prohibit ballot selfies argue that ballot selfies could lead to the buying and selling

• Bar Admissions

The bar admission process has produced many First Amendment-based challenges, especially when an applicant is denied because of past political associations or beliefs.

Regulation of billboards raises many First Amendment issues such as to what extent can the government limit access to public billboards or prohibit privately owned billboards?

• Birth Control

Birth control is a way by which pregnancy from sexual intercourse can be prevented. Communication about birth control has not always received First Amendment protection.

• Black Lives Matter

Black Lives Matter is a protest movement to call attention to police treatment of Black Americans. Response to protests have sometimes led to a chilling effect on First Amendment freedoms.

In the 1940s-’50s, a blacklist named people whose opinions or associations were deemed Communist. Opponents said blacklists and HUAC hearings violated free expression.

• Book Banning

Book banning, the most widespread form of censorship, occurs when books are pulled from libraries, school reading lists, or bookstores because someone objects to their content.

Courts have recognized boycotts as having First Amendment protection as long as their goals are to influence political reform rather than economic gain.

• Bumper Stickers

Courts have ruled that the First Amendment protects bumper stickers even when they are profane. This protection is less certain for public employees and military personnel.

• Cameras in the Courtroom

Allowing cameras in courtrooms has stirred controversy and led to Supreme Court decisions in First Amendment cases. The Court has allowed states to experiment with this issue.

• Campus Speech Codes

Courts having ruled that college campus speech codes violate students’ First Amendment rights, but arguments that colleges have a legitimate interest in such regulations continue.

• Captive Audience

The captive audience doctrine protects people in certain places and circumstances from unwanted speech. It is an exception to the First Amendment rule.

Censorship occurs when individuals or groups try to prevent others from expressing themselves. Government censorship violates the freedoms of speech and of the press.

• Central Hudson Test

The Supreme Court developed the Central Hudson test for determining when government could limit commercial speech without violating the First Amendment.

• Charitable Solicitation

While laws aimed at curbing solicitations by charities have been overturned on First Amendment grounds, charities can be required to disclose how their money is spent.

• Child Pornography

The Supreme Court has ruled some laws outlawing child pornography and children’s access to obscene materials were too broad and infringed upon First Amendment rights.

• Chilling Effect

Chilling effect is the concept of deterring First Amendment free speech and association rights through laws or regulations that appear to target expression.

• Classified Documents

The Supreme Court in 1971 ruled that the government cannot restrain in advance the press from publishing classified documents under the First Amendment.

• Clear and Present Danger Test

In the 20th century, the Supreme Court established the clear and present danger test as the predominate standard for determining when speech is protected by the First Amendment.

• Commercial Speech

Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech.

• Community Standards

In 1973, the Supreme Court said that community standards must be taken into account in determining whether something was obscene or could be protected by the First Amendment.

• Confederate Flag

The Supreme Court, while allowing the removal of the Confederate flag to stop disruption, has declined to find that flag infringes upon the rights of those who find it repugnant.

• Confederate Monuments

Government entities have grappled with whether to remove Confederate monuments from public grounds. Individuals have the First Amendment right to keep statues on private property.

• Confidential Sources

Some courts recognize a reporters’ privilege to not reveal confidential sources as a First Amendment right, but each jurisdiction varies in the level of protection.

The Court has ruled that some laws passed by Congress violate the First Amendment. Some congressional investigations have raised questions about the right of association.

• Congressional Investigations

Cold War-era congressional investigations led to the Court recognizing the First Amendment right of an individual to refuse to answer questions about past associations.

• Contempt of Court

Civil contempt of court can be fixed by obeying court orders. Criminal contempt involves violating the dignity of the court and is more likely to raise First Amendment issues.

• Content Based

A content-based law discriminates against speech based on the substance of what is communicated. In contrast, a content-neutral law applies without regard to its substance.

• Content Neutral

In First Amendment free speech cases, laws that are content neutral apply to all expression without regard to any particular message or substance.

The Supreme Court has acknowledged the compatibility of copyright and First Amendment free expression, but tension does exist as owners often seek to limit dissemination.

• Coronavirus and the First Amendment

Can the government restrict gatherings, including church services, during the coronavirus outbreak or is that a violation of the First Amendment religious freedom and assembly clauses? The government has broad powers during a health crisis. As long as restrictions apply equally, and not single out churches, courts would likely uphold them.

• Corporate Speech

Corporate speech refers to the rights of corporations to advertise their products and to speak to matters of public concern, including by spending money in elections.

• Counterspeech Doctrine

The counterspeech doctrine, first articulated by Louis Brandeis in First Amendment jurisprudence in 1927, posits that the remedy for false speech is more speech that is true.

• Criminal Libel

In the United States, courts have based decisions regarding slanderous or libelous statements on the First Amendment rights of free speech and freedom of the press.

• Cross Burning

Cross burning, which has been used as a form of intimidation against African Americans and Jews, has been defended in the courts on free speech grounds.

• Cyberbullying

Cyberbullying, bullying through electronic means, presents First Amendment issues when statutes criminalizing cyberbullying are overly broad or vague.

• Cybersquatting

Cybersquatting is considered to be abusive registration of domain names to appropriate a trademark. Cybersquatters may claim a First Amendment right to expression.

Defamation lawsuits can have a chilling effect on free speech. The Supreme Court first applied First Amendment protection from state libel laws in 1964 in New York Times v. Sullivan, establishing an actual malice standard that had to be met by public officials.

• Disclaimers

The government mandates advertising disclaimers to protect consumers, but they often present a First Amendment issue. Some say forced disclaimers are a form of compelled speech.

• Disclosure Requirements

Individuals and organizations that act in a political forum are subject to disclosure requirements. Some say such laws impinge on First Amendment freedoms.

• Disinformation Governance Board (2023)

Fighting foreign disinformation operations in America collided with fear of government control of information in the Department of Homeland Security’s short-lived Disinformation Governance Board.

• Divisive Concepts

Several state legislators passed laws in 2021 and 2022 limiting the discussion of race in public schools, raising questions about free speech and academic freedom.

• Door-to-Door Solicitation

Door-to-door solicitation by political parties, religious groups, and businesses can lead to clashes between First Amendment freedoms and homeowners’ privacy rights.

• Electioneering

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Wide-scale electronic communication has brought the government’s desire to control encryption technology into sharp conflict with First Amendment and Fourth Amendment rights.

• Exacting scrutiny

Exacting scrutiny is a form of close judicial review used by the U.S. Supreme Court to evaluate restrictions on speech in campaign finance, election law and compelled disclosures. It appears to be a form of review somewhere between strict scrutiny and intermediate scrutiny.

• Exit Polling

The media argue that exit polling is a form of expression protected by the First Amendment. States seeking to regulate the practice contend it disrupts the electoral process.

• Express Advocacy

Express advocacy is the use of words like “vote for” in political communications. It’s protected by the First Amendment, but the spending of money on such advocacy may be limited.

• Expressive Conduct
• Fair Report Privilege

The fair report privilege is a state-law defense to defamation claims used by journalists, although the level of protection may vary by state. Under the privilege, a journalist is insulated from a defamation claim when he or she publishes a defamatory comment that was part of official affairs of the government.

Fair use allows copyrighted works to be used in ways that would infringe on the copyright. Fair use is a way of preventing copyright from violating of the First Amendment.

• False Claims By Attorneys About Trump Election Result (2020-2021)

False claims by Donald Trump’s attorneys about the 2020 presidential election results have prompted some experts to observe the limits of First Amendment free speech protections for attorneys who make misleading public statements.

• False Light

False light invasion of privacy, portraying an individual unflatteringly in words or pictures as someone that person is not, is not protected by the First Amendment.

• False Speech

Because the First Amendment is designed to further the truth, it may not protect individuals who engage in libel. Generally, the government does not stand as the definer of truth.

• Fighting Words

The fighting words doctrine, an exception to First Amendment-protected speech, lets government limit speech when it is likely to incite immediate retaliation by those who hear it.

Films, which are protected by the First Amendment, have addressed several First Amendment-related topics, including the freedoms of religion, speech, and press.

• Filming the Police

Federal appellate courts have ruled that people have a First Amendment right to film police interactions with citizens.

• Flag Desecration

Flag desecration is one of the most polarizing First Amendment issues. The Court has handed down decisions on flag desecration, holding it to be protected expression.

• Fleeting Expletives and Fleeting Nudity

Although the Court has said that the FCC can regulate fleeting expletives, it has also overturned FCC sanctions, not on First Amendment grounds, but because of vague policies.

• Flying Flag Upside Down

Flags are important symbols and can evoke strong emotions depending on the context.  Flying a U.S. flag upside down as a form of protest has existed for at least 50 years. Legal precedents related to flag display Although flags representing nations are probably the most common, flags may also symbolize other causes. For example, a rainbow flag

• Fortune Telling

Many cities have tried to limit fortune telling, contending that the practice amounts to attempted fraud. Fortune tellers argue that the regulations violate the First Amendment.

• Free Speech During Wartime

Freedom of speech often suffers during times of war. Patriotism at times devolves into jingoism and civil liberties take a backseat to security and order.

• Free Speech Zones

Free-speech zones refer to areas on college campuses and at certain public events specifically designated for demonstrators to exercise their right to freedom of speech.

• Freedom of Assembly and Association

The First Amendment guarantees “the right of the people peaceably to assemble.” The notion that the act of gathering is pivotal to a functioning democracy relates to the belief that individuals espousing ideas will tend to coalesce around their commonalities. As a result, a correlative right of association — though not enumerated in the First Amendment

Gag orders on trial participants are often used to ensure fair trials. Gag orders on the press must meet high standards set by the courts to avoid prior restraint.

• Goldwater Rule

The American Psychiatric Association prohibits members from offering opinions about the mental state of public figures under the Goldwater Rule, which it adopted after public evaluations of presidential candidate Barry Goldwater’s psychiatric state.

• Government Funding and Free Speech

The Supreme Court has generally supported speech restrictions on government funding, even when those restrictions may have a chilling effect on First Amendment rights.

• Government Speech Doctrine

Under the government speech doctrine, the government has its own rights as speaker that can assert its own messages, immune from challenges of viewpoint discrimination.

• Government use of social media

Court rulings in the 2nd and 4th Circuit Courts of Appeal establish that when a government official opens up a social media account for public comment, the section of the site that is interactive is a designated public forum. As such, the First Amendment prohibits government officials from engaging in viewpoint discrimination.

• Graduation Speech Controversies

Court decisions have interpreted the First Amendment establishment clause as prohibiting prayers in public schools during both school hours and school functions.

• Gravity of the Evil Test

The gravity of the evil test is a refinement of the clear and present danger test to determine when First Amendment free speech may be subject to criminal prosecution.

• Group Libel

Since the 1900s, group libel, the defamation of an entire group of people, has coexisted uneasily with the First Amendment’s emphasis on individual speech rights.

• Hair Length and Style

Hair regulations in schools, prisons and workplaces have led to First Amendment battles, with litigants challenging policies for violating individuals’ rights.

• Hate Speech

Although the First Amendment still protects much hate speech, there has been much debate on the subject in the past two decades among lawmakers and legal scholars.

• Headlight Flashing

The practice of flashing headlights to alert other drivers to an upcoming patrol car has been claimed as a form of expression protected under the First Amendment.

• Heckler’s Veto

A heckler’s veto occurs when the government restricts speech because of the reactions of opponents of the speech. Courts have said hecklers’ vetoes violate the First Amendment.

• Heffron Principle

The Heffron principle is used to reject free-speech claims when claimants have other avenues of expression open. The principle can infringe upon First Amendment rights.

• Hicklin Test

The Hicklin Test, an obscenity standard originating in England, was initially used in America but did not survive constitutional challenges based on the First Amendment.

• Holocaust Denial

While other countries have prosecuted Holocaust deniers, the United States has had a different response, due to the freedom of speech ensured in the First Amendment.

• Homeschooling

The practice of homeschooling in America falls within parents’ and students’ protected First Amendment rights of free speech and the free exercise of religion.

• Horn Honking

Motorists argue that honking car horns is a form of expression or protest protected by the First Amendment. Courts have mostly rejected this argument.

• Incitement to Imminent Lawless Action

Many Supreme Court cases upholding restrictions on subversive speech have relied on the idea that such speech is forbidden because it incites violence or illegal actions.

• Indecency and the Electronic Media

The FCC defines indecency in the broadcast industries and regulates the content of television and radio broadcasts to prevent the airing of inappropriate material.

The Court faces challenges in dealing with regulation of online speech because of the internet’s unique ability to spread information quickly and widely.

An intrusion on seclusion claim applies when someone intentionally intrudes, physically or through electronic surveillance, upon the solitude or seclusion of another.

• Issue Advocacy

Issue advocacy refers to advertising on public issues unregulated by political campaign finance laws. Laws regulating issue advocacy have had mixed results in the courts.

• Judicial Campaign Speech

To promote judicial impartiality, states have regulated judicial campaign statements, but recent court decisions have granted such comments greater First Amendment protection.

• Libel and Slander

Libel and slander lawsuits can have a chilling effect on free speech. The First Amendment rights of free speech and free press often clash with the interests served by libel laws.

• Libel-Proof Plaintiff Doctrine

The libel-proof plaintiff doctrine is a concept that insulates a defendant from defamation liability for statements made about someone who has no good reputation to protect.

• Liberty Poles

One important form of symbolic speech and protest in the United States that began before the Revolutionary War and continued long after the adoption of the First Amendment was the erection of liberty poles.   Such poles have some association with Liberty Trees, like the elm near the Boston Commons where Patriots gathered in protest against British

• Libraries and Intellectual Freedom

Libraries protect the right to receive information, a concept in First Amendment jurisprudence that can protect against some book banning and Internet filtering.

• Loyalty Oaths

The constitutionality of loyalty oaths is part of the struggle between the government’s regulation of threats to national security and the First Amendment rights of citizens.

Throughout U.S. history, the mail has played a crucial role in shaping jurisprudence on free expression, but its impact on the First Amendment has diminished in recent years.

• Marketplace of Ideas

The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor.

• Media Concentration

Critics of ownership concentration in the news media business say that it threatens the marketplace of ideas and poses a threat to First Amendment freedoms.

• Media Exemption to Antitrust Laws

To promote diversity of ideas under the First Amendment, the Supreme Court has sometimes allowed news media organizations to have exemptions to antitrust laws.

• Membership Lists

The free speech and freedom of association clauses of the First Amendment generally prevent the government from requiring associations to disclose their members’ names.

• Middle Finger Gesture

Experts believe the middle finger gesture does not rise to the legal standard of obscenity or fighting words. However, they do believe students can be punished for the gesture.

• Miller Test

The Miller Test is the primary legal test for determining whether expression constitutes obscenity. It is named after the Supreme Court’s decision in Miller v. California (1973).

• Misappropriation

Appropriation is the unauthorized use of a person’s likeness for financial gain. Although appropriation may involve speech, it is not protected by the First Amendment.

• Motion Picture Ratings

The First Amendment limits the degree to which governments can censor movies. The Motion Picture Association of America uses a voluntary system of movie ratings to inform parents.

• Music Censorship

First Amendment challenges to music have focused on claims that the lyrics are obscene, that they incite violence, or that they are harmful to minors.

• Narrowly Tailored Laws

The term “narrowly tailored” refers to laws regulating First Amendment rights. These must be written to place as few restrictions as possible on First Amendment liberties.

• National Identification Cards

It has been proposed that United States residents be required to carry proof of identity, but critics of the idea argue that the proposal would raise First Amendment concerns.

• National Security

Despite the First Amendment, perceived risks to national security have prompted the government to restrict First Amendment freedoms throughout U.S. history.

• Neutral Reportage Privilege

Neutral reportage protects from libel claims media that accurately and objectively report newsworthy charges against public figures as part of an ongoing controversy.

• Neutrality, Speech

Laws restricting speech are subject to strict scrutiny to ensure they are neutral under the First Amendment. They can not discriminate against speech the government disfavors.

• Noerr-Pennington Doctrine

The Noerr-Pennington doctrine is a judicially created defense against certain business torts (wrongful acts) for activity that implicates the First Amendment petition right.

• Nude Dancing

According to the Supreme Court, nude dancing, when performed before an audience to convey feelings of eroticism, is expressive conduct triggering First Amendment review.

• Obscenity and Pornography

Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value.

• Overbreadth

Overbreadth provides that a regulation of speech can sweep too broadly and prohibit speech protected by the First Amendment as well as non-protected speech.

Pandering, when distributors or booksellers merchandise works in salacious terms, is a First Amendment issue because of laws that ban mailing obscene materials.

Courts have consistently ruled that private speech that takes place in public in the form of a parade or march is constitutionally protected by the First Amendment.

Perjury is not protected by the First Amendment because it undermines the ability of courts to obtain truthful testimony and to effectively administer justice.

• Pickering Connick test

The Pickering Connick test refers to a longstanding test in First Amendment law used by courts to determine whether a public employer violated an employee’s free-expression rights. The test considers whether a public employee spoke on matters of public concern, and if the speech outweighed the interest in a disruptive-free workplace.

Since Thornhill v. Alabama (1940), courts have held that picketing triggers First Amendment review. Governments can restrict the time, place, and manner of picketing.

• Picketing Outside the Homes of Judges and Justices

A federal law that prohibits pickets in front of a judge’s home with the intent of influencing the judge could be considered a reasonable time, place and manner restriction under the First Amendment.

• Pledge of Allegiance

The Supreme Court has ruled that compelling schoolchildren to recite the Pledge of Allegiance violates the First Amendment. The Court has not struck “under God” from the pledge.

• Political Correctness

Political correctness is based on the belief that offensive speech and behavior should be eliminated. Politically correct legislation can violate the First Amendment.

• Political Parties

Political parties enjoy significant protection under the First Amendment. It is not always clear who is the “political party” and who can assert First Amendment rights.

• Political Patronage

Political patronage is the hiring of a person to a government post based on partisan loyalty. Some say that the practice penalizes First Amendment rights of political association.

• Press Access

The First Amendment appears to provide a special right for the press, however the Supreme Court has taken a narrow view of the “press clause” and held that the press does not have greater rights than those accorded to the public in general. Some scholars have criticized this viewpoint and argued that the press role of keeping the public informed calls for a different interpretation.

• Prior Restraint

Prior restraint allows the government to review the content of printed materials and prevent their publication. Prior restraint usually violates the First Amendment.

Privacy generally refers to an individual’s right to seclusion or right to be free from public interference. Often privacy claims clash with First Amendment rights

• Private Property, Expression on

The Supreme Court generally has rejected arguments that the First Amendment requires private property owners to accommodate expressive speech by others.

Under modern First Amendment jurisprudence profanity cannot categorically be banned but can be regulated when it applies to categories such as fighting words or true threats.

• Professional Speech Doctrine

The professional speech doctrine is a concept used by lower courts in recent years to define and often limit the free-speech rights of professionals when rendering counsel.

• Protests in Neighborhoods

Many municipalities have enacted ordinances limiting or banning targeted protests in residential areas. The issue presents a clash between privacy and freedom of expression.

• Public Employees

Public employees have a First Amendment right to speak on matters of public concern as long as the speech is not outweighed by an the interest in a disruption-free workplace.

• Public Figures and Officials

To promote First Amendment freedom of speech, libel plaintiffs who are public figures or officials must show a publisher acted with actual malice to collect damages.

• Public Forum Doctrine

The public forum doctrine is an analytical tool used in First Amendment jurisprudence to determine the constitutionality of speech restrictions implemented on government property.

• Public Nudity

Public nudity is typically banned as a matter of regulating morals. Only recently has the Supreme Court considered public nudity in terms of First Amendment freedom of expression.

• Qualified Immunity

Under the qualified immunity doctrine, government officials could violate a person’s First Amendment rights, but not face liability because the law was not settled or known at the time the official engaged in such conduct.

• Rap Music and the First Amendment

The musical genre of rap, which often features a hard-core assessment of inner city woes, has come under threats of censorship through the years in a variety of contexts.

• Regulation of Political Campaigns

Efforts to regulate political campaigns often involve competing First Amendment concerns, forcing the courts to adjudicate which rights deserve more protection.

• Reporter’s Privilege

The idea behind reporter’s privilege is that journalists have a limited First Amendment right not to be forced to reveal a confidential source or information in court.

• Retaliatory Arrests

Retaliatory arrests refer to arrests by law enforcement officials against persons in retaliation for those persons’ First Amendment free-expression rights.

Many states have adopted retraction statutes that allow the press to reduce liability if they publish a correction within a certain time period. Because defamatory statements are not considered protected under the First Amendment, retraction help mitigate potential damages from an editorial mistake.

• Revenge Pornography

Under current First Amendment guidelines, any laws regulating revenge pornography would have to be narrowly drawn and made in pursuit of a “compelling state interest.”

• Rhetorical Hyperbole

Rhetorical hyperbole is a First Amendment-based doctrine that the Court has used to provide protection to exaggerated, over-the-top speech in defamation cases.

• Right of Candidates to Run for Office (May 31, 2022)

In a case involving a North Carolina congressman’s right to run for reelection to office in 2022, the 4th U.S. Circuit Court of Appeals considered his claim of amnesty, but not his First Amendment claims.

• Right of Publicity

The right of publicity is a right to legal action, designed to protect the names and likenesses of celebrities against unauthorized exploitation for commercial purposes.

• Right to Learn and Teach Foreign Languages

The Supreme Court has held that the Constitution protects the right to learn and teach foreign languages. The Court said this right falls under the penumbra of the First Amendment.

• Right to Receive Information and Ideas

The United States Supreme Court has recognized that the right to receive information and ideas flows from the First Amendment protection of free speech.

• Right to Respond and Right of Reply

The FCC’s right to respond and reply allowed those criticized on radio and TV broadcasts time to share their viewpoint on air to foster First Amendment diversity of viewpoints.

• Rights of Military Personnel

When the U.S. military is a party to cases centering on First Amendment rights, the Supreme Court generally defers to the government’s interest and discretion.

• Rights of Prisoners

The First Amendment rights of prisoners have been sharply curtailed. When analyzing prisoner speech claims, the Supreme Court has usually deferred to prison administrators.

• Rights of Students

Public school students enjoy First Amendment protection based on the type of expression and their age. Students do not shed their First Amendment rights at the schoolhouse gate.

• Rights of Teachers

In American jurisprudence, public school teachers, as public employees, do not forfeit all of their First Amendment rights to free expression when they accept employment.

Some robocall laws enacted by states have been overturned on First Amendment grounds by U.S. Circuit Courts, but the 8th Circuit upheld Minnesota’s law in 2017.

• Safety Valve Theory

Under the safety valve theory of the First Amendment theory, the ability of citizens to freely protest about government deters them from undertaking violent action.

Although it frequently comes under legal attack, satire, which humorously mocks and scorns individuals and political practices, is protected speech under the First Amendment.

• Scarcity Rationale

The scarcity rationale is a legal reasoning that provides for more government regulation and limited recognition of First Amendment freedoms for broadcasters.

• Secondary Effects Doctrine

The secondary effects doctrine is used when content-based laws are aimed at the secondary effects of protected expression. The laws can more easily pass First Amendment scrutiny.

• Self-government Rationale

The self-government rationale justifies free speech protections of the First Amendment by reasoning that self-government depends on a free and robust democratic dialogue.

• SLAPP Suits

A SLAPP suit is a civil claimed filed against an individual or organization for exercising their First Amendment right of petition about an issue of public concern.

Congress is under growing pressure to regulate spam in much the same way it regulates telemarketing, but regulation of spam raises First Amendment free speech issues.

• Specialty License Plates

Specialty license plates have been challenged as discriminatory, but the Court has said the plates are government speech and immune from First Amendment challenges.

• Spence Test

Under the Spence Test, used to determine whether expressive conduct is protected by the First Amendment, such conduct must have an intended message, likely to be understood.

• Sports Logos and Mascots

Sports logos and mascots that may be offensive to Native Americans, African Americans, or other racial and ethnic groups are generally protected by the First Amendment.

• Stop W.O.K.E Act (Florida) (2022)

A federal judge blocked Florida’s Stop W.O.K.E. Act saying that it violates the First Amendment by limiting professors at state schools from expressing certain viewpoints related to race, sex and country of origin when relevant to the curriculum.

• Student Activity Fees

The Supreme Court has ruled that under the First Amendment, decisions about how to use student activity fees on college campuses must be viewpoint neutral.

• Substantial Disruption Test

The substantial disruption test is the standard developed by the Supreme Court to determine when public school officials may discipline students for their expression.

• Substantial Truth Doctrine

The substantial truth doctrine, stemming from the First Amendment, allows individuals to avoid liability in libel claims if the gist of the statement was substantially true.

• Surveillance and Wiretapping

Interception of private communications via electronic surveillance raises First Amendment concerns for the chilling effect it can have on free speech.

Swatting is the act of making fake 911 calls to prompt police to send a SWAT team to a person the caller wants to harass. The First Amendment would likely not protect swatting.

• Symbolic Speech

Symbolic speech consists of nonverbal, nonwritten forms of communication. It is generally protected by the First Amendment unless it causes a specific, direct threat.

Tattoos implicate the First Amendment because many municipalities have sought to impose restrictions on tattooing. Courts have decided tattooing is protected expressive conduct.

• Taxation of Newspapers

Newspaper taxation controversies that have emerged since the writing of the First Amendment have largely focused on taxation used to penalize certain publications.

• Telemarketing

Telemarketing implicates the First Amendment, which has not been viewed as an absolute bar to regulation. Many regulations have passed First Amendment review.

• The Woke Movement and Backlash

“Woke” refers to being aware of the society around you and speaking up for needed change or against perceived injustice. The word suggests someone who has been oblivious to social issues, but then awakens to see the world differently. Tools to effect change would include the First Amendment freedoms of speech, press, petition and assembly.    While

• Time, Place and Manner Restrictions

Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. These restrictions do not usually violate the First Amendment.

• Times Square

The history of Times Square, known for its crowded streets and tourists, reflects the momentous changes of the past century, including battles over First Amendment freedoms.

• Tobacco Advertising

As tobacco companies have learned, when making statements to the public about products, there are limits to the free speech protections afforded under the First Amendment.

• Tort Liability of Religious Groups

The religious clauses of the First Amendment raise the issue of whether individuals should be allowed to sue religious entities for similar tort damages.

• Trucker Blockade (Feb. 15, 2022)

Truckers have boycotted coming into the U.S., causing supply chain issues, over a requirement that they get vaccinated to cross the U.S./Canada border. Their protests are probably protected by the First Amendment.

• True Threats

A true threat is a statement meant to frighten people into believing they will be seriously harmed by the speaker. True threats are not protected by the First Amendment.

Courts in the United States give particular scrutiny to vague laws relative to First Amendment issues because of their possible chilling effect on protected rights.

• Video Games

The Supreme Court has said that video games are entitled to First Amendment protection, invalidating laws that try to limit the access of minors to violent video games.

• Voting Rights and the First Amendment

The First Amendment freedoms of press, speech, petition and assembly are all designed to encourage citizen participation in democracy and hold government officials accountable. Yet the First Amendment never cites the right to vote, the ultimate check on government corruption and incompetence.   Voting is instead a process managed primarily by 50 different state legislatures.

• Watts Factors

The Watts factors refers to three factors the Supreme Court identified in its true-threat decision to distinguish between speech protected by the First Amendment and a true threat.

• Whistleblowers

The First Amendment-related issue of whistleblowing, exposing illegal conduct that violates norms of accountability, has been protected by federal and state law.

First Amendment - List of Essay Samples And Topic Ideas

The First Amendment to the United States Constitution protects the freedom of speech, religion, and the press, among other rights. An essay could delve into the historical context of the First Amendment, significant court cases that have interpreted the First Amendment, and ongoing debates about the limits of these freedoms. We have collected a large number of free essay examples about First Amendment you can find in Papersowl database. You can use our samples for inspiration to write your own essay, research paper, or just to explore a new topic for yourself.

First Amendment Values

Americans value the First Amendment as much as a teenage girl values her cell phone. Life just wouldn't be the same without it. Thanks to the authors of the Constitution America has established the fundamental laws, government, and basic rights for American citizens. The document was signed on September 17, 1787, in Philadelphia. Later, Madison introduced 19 amendments, 12 of which were adopted. Ten of them were ratified and became the Bill of Rights on December 10, 1791. The First […]

Civil Rights and First Amendment

How does the text define civil rights? Civil rights are the freedom from unequal treatment. To have civil rights is to have the freedom to be able to participate in all aspects of a society, “to vote, use public facilities, and exercise equal economic opportunity.” It takes the government to protect the civil rights of the people but protecting the rights of some can infringe the rights of others by forcing prejudice people to accept a society that they are […]

The Bill of Rights and Constitution

On December 15, 1791, the Bill of Rights became part of the Constitution. These amendments were created to protect the rights of the citizens of the United States. The most important rights that were created in the Bill of Rights is the first amendment, it protects a citizen's freedom of speech and allow them to freely speak what they want and believe. It also allows the freedom of religion and press. First Amendment allows Americans who live in a country […]

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The First Amendment

The First Amendment does not protect all forms of speech. Although its protections are incredibly diverse and broad, the First Amendment does not protect forms of speech including: “obscenity, fighting words, defamation (including libel and slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, and solicitations to commit crimes” (Freedom Forum Institute, 1). The incorporation doctrine is a constitutional doctrine establishing the Bill of Rights (amendments 1-10) as fundamental rights guaranteed in both federal and state court […]

The Origins of the First Amendment

The first well-known amendment of the constitution, the first amendment "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.". The U.S. government cannot require a specific religion for all its citizens. United States citizens have the right to decide what faith we want to […]

3d Printed Guns It is Constitutional

Even though this is an incredibly new technology, politicians and even presidents around the globe makers have recognized 3D printed guns and what’s behind it. Regardless of what their actual thoughts are on the topic, the laws that they have tried to put into place that obstructs the progress of the technology has risen the number of questions that deal with it. Questions such as whether or not it is constitutional to make them, distribute them or even use them. […]

Protection our First Amendment V. the End Collective Bargaining

On June 27, 2018, the Supreme Court ruled, with a vote of 5 to 4, in favor of Marc Janus in the case Janus v. American Federation of County, and Municipal Employees. The Supreme Court overturns the 40-year-old precedence that mandated for unions in 22 states for non-members to pay agency fees that help fund collective bargaining activities. For the simple reason that regardless of membership status non-members still benefited from any bargaining outcomes. Marc Janus is a state employee, […]

Banned Books and the First Amendment Essay

Literature is an important aspect of the human life. The freedom of reading is an issue due to language usage and subject matter. Banning books could either be censoring individuals from the pain of history, or allowing them to expand their intellectual capacity. Evidently, banning books could be both favorable, and a cause for concern. The article “Read the Great Books That Use the Worst Slur,” authored by Tonyn Norman argues the need to protect the eyes and ears of […]

The First and Fourteenth Amendment

Without freedom of speech and equal protection, our country would be drastically different. There are two essential things to remember about the First Amendment protection of free speech. The main reason we have freedom of speech is to allow for public criticism of the government. Secondly, it important to remember is that the First Amendment protects us from the government doing things that try to refuse your freedom of speech, but not anyone else. What this means is that we […]

First Amendment Petition Clause

Under the United States Constitution, the first amendment protects the American right to petition the government for redress of grievances. In the Declaration of Independence, Congress included American's list of grievances toward the British government. American colonies repeatedly requested relief from these said grievances such as taxation without consent, or the prevention of people elected rulers, but they were only met with more restrictions. One of the main reasons this right is so important was because the United States' first […]

First Amendment Freedom of Speech

The 2017 Berkeley protests organized by different groups including By Any Means Necessary (BAMN) were an abject violation of the freedom of speech as outlined in the First Amendment of the American constitution. The protests successfully stopped a speech by Milo Yiannopoulos, a controversial Breitbart editor and a self-declared Trump supporter. The protests turned violent and led to the destruction of the property thus posing significant harm to the society. In defending the protests, Yvette Felarca, BAMN’s spokesperson argued that […]

1st Amendment and Congress

David Thuita I Amendment "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." The beginning of the second amendment finds its root in Athens, Greece during the 400s B.C., where free men were allowed to freely speak. Athen theaters, writings, and educational institutions all […]

The Original Bill of Rights

On September 25, 1789, state legislatures were presented with twelve amendments drafted by James Madison for addition to the Constitution. Ten of those twelve amendments, numbers 3 through 12, were ratified and employed by the federal government on December 15, 1791, thus becoming the United States Bill of Rights (Jordan). The Bill of Rights acted as a compromise between the federalists and anti-federalists to ensure the Constitution's ratification (Bill of Rights Institute Staff, "Bill of Rights"). Anti-federalists argued that the […]

Should Social Media be Regulated: Safeguarding Freedom of Speech and the Press

If you are reading this paper, I’m positive you have previously encountered social media platforms. These platforms show up everywhere, and they have so deeply infiltrated our everyday lives that it is almost impossible to avoid them. This paper isn’t intended to discuss the positives and negatives of social media. It’s not even intended to tell you if you should use social media or not. This paper is intended to present the debate of who should be regulating social media […]

Preserving Liberty: an Exploration of the Founding Tenets

In the annals of American governance, the first ten amendments to the Constitution emerge as a beacon of liberty, collectively known as the Bill of Rights. Engraved in 1791, these amendments were sculpted to safeguard individual freedoms and tether the reach of federal authority. Let us embark on a journey through each of these amendments, weaving a narrative that intertwines historical context with enduring relevance. The First Amendment: Aptly deemed the cornerstone of American democracy, the First Amendment unfurls a […]

the First Amendment: a Cornerstone of American Freedom

In the mosaic of American democracy, few elements stand as prominently as the First Amendment. Rooted in the foundational principles of liberty and expression, it serves as a beacon of freedom in a complex and ever-evolving society. At its core, the First Amendment encapsulates a profound commitment to individual autonomy and the unimpeded exchange of ideas, fostering a vibrant marketplace of beliefs and perspectives. The First Amendment, enshrined in the Bill of Rights, comprises several essential freedoms: religion, speech, press, […]

Preserving Liberty: the Foundational Principles of the First Amendment

From the hallowed chambers of history emerges a beacon of democratic values, the First Amendment, a testament to the enduring spirit of freedom in the United States. This constitutional cornerstone, etched into the fabric of American governance, champions the quintessential liberties that define a vibrant society. Its essence lies in the protection of expression, encompassing speech, press, religion, assembly, and petition—a testament to the nation's commitment to fostering a pluralistic landscape where voices resonate freely, echoing the diversity of thought […]

The First Amendment in Action: Everson V. Board of Education

Imagine stepping back into 1947, a time when America was navigating the complexities of post-war society and grappling with questions about its foundational values, particularly the separation of church and state. Enter the scene: Everson v. Board of Education, a Supreme Court case that, at first glance, centered around something as mundane as whether New Jersey could reimburse parents for bus fares to send their children to Catholic schools. But, oh, was there more to the story! This case wasn't […]

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Essays on First Amendment

Your First Amendment essay gives you a chance to explore how people’s rights were implemented. After the Declaration of Independence in 1776, the founding fathers of the United States set out to create a Constitution, but the document turned out to be flawed: it did not uphold personal rights. Most First Amendment essays follow the process of legal enforcement of human rights in detail. In 1791, ten amendments were released and called The Bill of Rights, which became an official part of the Constitution on December 15 that year. Our samples of essays on First Amendment showcase what rights were enforced in the First Amendment. The first amendment declared that people can not be denied free religion, assembly, speech, press, as well as the right to petition the US government. Review the best First Amendment essay samples below to improve your essay.

The Constitution of the United States of America came into force in 1789. At 229 years old, it is arguably the oldest Constitution still in use in the world today. Despite being the supreme law of the land, the sovereign power remains vested in the people of the United States...

Words: 1745

Free Speech and Hate Speech Free speech is considered as the freedom of communication for the people. It includes the liberty of the press and the people to say what they want/like and liberty for the people to assemble like protesting peacefully. Also, freedom of speech gives people the opportunity to...

The Principle of Separation Between Church and State The US First Amendment prohibits Congress from passing laws that support an establishment of a specific religion, which is where the idea of a separation between church and state originated. (Van and Kurt 58). The federal government is required to uphold a position...

The Evolution of the Right to Free Speech The first amendment of the US constitution includes the right to free speech as a constitutional guarantee. The fundamental idea underlying the cry for free speech was to live without the fear of going to jail for expressing one s opinions. The constitution...

Words: 1811

The First Amendment is a legislation that was created that prohibits Congress from adopting laws regarding religious establishment. As a result, there was no restriction on the free exercise of religion, free speech, free press, and the right to congregate and petition the government for redress of people's grievances. (Russo)...

Words: 1759

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The First Amendment's religion clause and freedom of religious expression The First Amendment's religion clause in the United States Constitution protects the freedom of religious expression. This clause states that a state may not pass legislation establishing a particular national religion (Durham, Ferrari, Cianitto, Thayer, 2016). As a result,...

The constitution of the United States, recognized as the supreme ruler of the United States, establishes the US government's national structure. The US constitution has had 27 amendments since its coming into force in 1789 ("This is in order to accommodate the evolving needs of the nation (the Constitution) from...

Words: 1469

The first amendment to the constitution is perhaps the most significant aspect of the constitution's bill of rights. The amendment guarantees five of the most basic rights, including religious freedom, free expression, free press, free assembly, and the right to lobby the government to redress wrongs. However, there are other...

Words: 1143

According to the first amendment, the law regards no religion, but allows its citizens to exercise their free will and practice any religion they want. In educational institutions, religious symbols are not referred to or taught except it is required, and its use should be scrutinized to determine if there...

State Legislation on Children's Educational Programming State legislation states that the Federal Communications Commission should enact rules that will require tv stations to air children's educational programming at least three hours a week. The FCC has offered a limited justification for the imposition of such legislation. However, the majority of the...

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Princeton Legal Journal

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

4 Prin.L.J.F. 12

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that   “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

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David French

Maga turns against the constitution.

By David French

Opinion Columnist

You may not know this, but the United States is in the grips of another crisis — perhaps its greatest crisis of all. In addition to confronting a recession, a collapsing stock market, unemployment rates at a 50-year high and skyrocketing crime, the Constitution itself is now essentially dead. It’s broken. It failed, and unless there is revolutionary change, the nation we love is lost forever.

Welcome to Joe Biden’s America.

Sharp readers will recognize immediately that nothing I said above is true. The economy is growing , the stock market is at historic highs and the unemployment rate is near a 50-year low . That doesn’t mean the economy is perfect. Inflation and higher interest rates have caused real economic pain, but the American economy is still, as the EconForecaster economist James Smith recently said, the “ envy of the world .”

Crime in America is too high, especially compared with the rest of the developed world. But crime rates have dropped after pandemic-era increases , and overall crime rates are substantially lower than they were in the relatively recent past: Violent crimes and property crimes are occurring at less than half the rates they were in the early 1990s.

Yet countless millions of Americans simply don’t know any of these facts. According to a recent Harris Poll, 55 percent of Americans believe the economy is shrinking, 56 percent believe that the United States is in a recession, 49 percent think the S&P 500 stock index is down for the year and 49 percent believe — incredibly enough — that unemployment is at a 50-year high. An overwhelming majority of Americans (77 percent) believe that crime is rising — one of the most pessimistic assessments in a generation.

If you’re a Democratic strategist, the perception gap between opinion and reality is a profound political problem. It’s hard for a presidential incumbent to win re-election when so many Americans are so deeply discontent, and these same strategists are confronting a political party that has every incentive to magnify American problems. Republicans want a stink of failure to surround the Biden administration.

But the problem of public ignorance and fake crises transcends politics. Profound pessimism about the state of the nation is empowering the radical, revolutionary politics that fuels extremists on the right and left. In fact, absent catastrophic alarmism, the MAGA movement would never have come close to power.

The fundamental argument on the Trump right since 2015 has gone something like this: If America isn’t a failed state, it’s at least a failing state. It’s an economic and military paper tiger that has rejected God, can’t tell male from female, and is lapsing into a state of chaos that only a strong leader can confront. He, alone, can fix it.

But MAGA is frustrated. The Constitution blocks Trump from doing what must be done. It blocks him from seizing the level of control that the far right believes the moment requires. And so now, for parts of MAGA, the Constitution itself is part of the crisis. If it doesn’t permit Trump to take control, then it must be swept aside.

Elements of this argument are now bubbling up across the reactionary, populist right. Catholic post-liberals believe that liberal democracy itself is problematic. According to their critique, the Constitution’s emphasis on individual liberty “atomizes” American life and degrades the traditional institutions of church and family that sustain human flourishing.

Protestant Christian nationalists tend to have a higher regard for the American founding, but they believe it’s been corrupted. They claim that the 1787 Constitution is essentially dead , replaced by progressive power politics that have destroyed constitutional government.

Still others believe that the advent of civil rights laws created, in essence, a second Constitution entirely , one that privileges group identity over individual liberty.

The argument that the Constitution is failing is just as mistaken as the argument that the economy is failing, but it’s politically and culturally more dangerous. Reversing a crime wave doesn’t require us to abandon the Bill of Rights. Achieving economic prosperity doesn’t require authoritarianism. But if your ultimate aim is the destruction of your political enemies, then the Constitution does indeed stand in your way.

Right-wing constitutional critics do get one thing right: The 1787 Constitution is mostly gone, and America’s constitutional structure is substantially different from the way it was at the founding. But that’s a good thing, and the actual written Constitution that exists today, the document that’s been formally amended 27 times, is very much alive, and its guardrails against tyranny remain vital and relevant today.

The original Constitution and Bill of Rights, while a tremendous advance from the Articles of Confederation, suffered from a singular, near-fatal flaw. They protected Americans from federal tyranny, but they also left states free to oppress American citizens in the most horrific ways. The original Constitution permitted slavery, of course, and the Bill of Rights, which includes protections for religious liberty, free speech and due process, restricted only the federal government, not the states.

Individual states ratified their own constitutions that often purported to protect individual liberty, at least for some citizens, but states were also often violently repressive and fundamentally authoritarian. Through much of American history, various American states protected slavery, enforced Jim Crow, suppressed voting rights, blocked free speech, and established state churches.

As a result, if you were traditionally part of the local ruling class — a white Protestant in the South, like me — you experienced much of American history as a kind of golden era of power and control.

The Civil War Amendments changed everything. The combination of the 13th, 14th, and 15th Amendments ended slavery once and for all, extended the reach of the Bill of Rights to protect against government actions at every level, and expanded voting rights.

But all of this took time. The end of Reconstruction and the South’s “ massive resistance ” to desegregation delayed the quest for justice. It took the 19th Amendment to grant women the right to vote, but decades of litigation, activism and political reform have yielded a reality in which contemporary Americans enjoy greater protection for the most fundamental civil liberties than any generation that came before.

And those who believe that the civil rights movement impaired individual liberty have to reckon with the truth that Americans enjoy greater freedom from both discrimination and censorship than they did before the movement began.

So why are parts of the right so discontent? The answer lies in the difference between power and liberty. One of the most important stories of the last century — from the moment the Supreme Court applied the First Amendment to state power in 1925, until the present day — is the way in which white Protestants lost power but gained liberty. Many millions are unhappy with the exchange.

Consider the state of the law a century ago. Until the expansion of the Bill of Rights (called “ incorporation ”) to apply to the states, if you controlled your state and wanted to destroy your enemies, you could oppress them to a remarkable degree. You could deprive them of free speech, you could deprive them of due process, you could force them to pray and read state-approved versions of the Bible.

The criminal justice system could be its own special form of hell. Indigent criminal defendants lacked lawyers, prison conditions were often brutal at a level that would shock the modern conscience, and local law enforcement officers had no real constitutional constraints on their ability to search American citizens and seize their property.

Powerful people often experience their power as a kind of freedom. A king can feel perfectly free to do what he wants, for example, but that’s not the same thing as liberty. Looked at properly, liberty is the doctrine that defies power. It’s liberty that enables us to exercise our rights. Think of the difference between power and liberty like this — power gives the powerful freedom of action. Liberty, by contrast, protects your freedom of action from the powerful.

At their core, right-wing attacks on the modern Constitution are an attack on liberty for the sake of power. An entire class of Americans looks back at decades past and has no memory (or pretends to have no memory) — of marginalization and oppression. They could do what they wanted, when they wanted and to whom they wanted.

Now they don’t have that same control. It’s not just that Catholics and Protestants have equal rights (a relatively recent development), it’s that Muslims, Sikhs, Jews, Buddhists and atheists all approach the public square with the same liberties. Drag queens have the same free speech rights as pastors, and many Americans are livid as a result.

That’s not to say that the Constitution is in perfect health. I’ve long been alarmed at the rise in presidential power. The growth of the administrative state undercuts Congress’s constitutional role in American democracy , and I have my problems with a number of Supreme Court doctrines, but I don’t for a moment think the Constitution is dead or fundamentally broken, and I certainly don’t think the answer to any of our problems is recreating anything like the Constitution of 1787, which permitted so much human suffering.

The topic of disinformation has rightly dominated much of our public discourse, but if anything the focus has been too narrow. Yes, vaccine conspiracy theories are deeply destructive. So are election conspiracies. But when a movement starts to believe that America is in a state of economic crisis, criminal chaos and constitutional collapse, then you can start to see the seeds for revolutionary violence and profound political instability. They believe we live in desperate times, and they turn to desperate measures.

I’m reminded of one of the most famous admonitions of scripture — “You shall know the truth, and the truth shall set you free.” So much American angst and anger right now is rooted in falsehoods. But the truth can indeed set us free from the rage that tempts American hearts toward tyranny.

Some other things I did

On the day of the Trump guilty verdict, I joined my colleagues Michelle Goldberg and Patrick Healy for a special edition of the Matter of Opinion podcast. We discussed both the legal and political aspects of Trump’s conviction. I’d encourage you to listen to the whole thing, but in particular I found myself expressing my concerns about what happens if Trump wins the election. If you thought you’d seen MAGA devotion to Trump before, well, you ain’t seen nothing yet:

He’s been found liable for fraud. He’s been found liable for sex abuse. He’s been found liable for defamation. Now he’s been convicted as a felon. If he wins anyway, the religious zeal around Donald Trump will be something to see. If we think that there has been a Trump cult already, if he wins in spite of all of this, the Trump cult will be — we will have seen nothing yet, is what I would say. And the level at which he would feel empowered to execute his objectives of vengeance — it would get truly scary, truly scary.

On Sunday, I took a break from Trump conviction commentary to focus on the First Amendment . The American Civil Liberties Union represented the National Rifle Association in a case contesting Democratic censorship, and Justice Sotomayor wrote an opinion for a unanimous court supporting the free speech rights of the N.R.A. The consistent defense of civil liberties can make for strange bedfellows indeed:

I’m a gun owner, but I’m not a member of the N.R.A. Whatever it once was, it is now thoroughly radicalized and strikingly corrupt . But no matter how much any person may despise the N.R.A., I’m reminded of the dialogue between William Roper, a young lawyer, and Sir Thomas More , the English chancellor who was executed for defying Henry VIII, in Robert Bolt’s “A Man for All Seasons.” More and Roper are arguing over whether the Devil himself gets the benefit of the law. Roper says that he’d “cut down every law in England” to pursue Satan. “Oh?” More replies. “And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?” The Bill of Rights was ratified more than two centuries after More’s death, but it’s the legal answer to More’s concern. If you diminish the First Amendment to destroy your political opponents, then when your opponents gain power (and they will), you’ll have nowhere to hide.

David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation .” You can follow him on Threads ( @davidfrenchjag ).