thesis statement about the first amendment

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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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
• Mccarthyism

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 :

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 First Amendment to the U.S. Constitution, 1 Footnote U.S. Const. amend. I . viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws “respecting an establishment of religion” —the Establishment Clause—or “prohibiting the free exercise thereof” —the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these clauses before explaining, in turn, the Supreme Court’s interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the clauses protecting the freedoms of assembly and petition.

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The first amendment, from jefferson to brandeis: the first amendment, the declaration, and the constitution.

These remarks were delivered by Jeffrey Rosen , president and CEO of the National Constitution Center, at a May 2, 2022, celebration of the newly installed marble First Amendment tablet , donated to the National Constitution Center by the Freedom Forum. Its design and installation was made possible through the generosity of Judge J. Michael Luttig and Elizabeth Luttig.

Speech Transcript

Thank you, Judge [J. Michael] Luttig, for your gift to America in bringing the First Amendment Tablet to Philadelphia. It’s fitting that the 45 words of the First Amendment will shine forever over Independence Hall, where the Declaration of Independence and the Constitution were drafted. As we prepare to dedicate the Tablet, let’s gaze together at Independence Hall and then turn our attention back to the words of the Tablet that are shining before us. Holding these two images in our minds is illuminating, because the First Amendment shows us the connection between the Declaration and the Constitution. It protects freedom of conscience, which the Founders considered first among the unalienable rights enshrined in the Preamble to the Declaration and first among the blessings of liberty enshrined in the Preamble to the Constitution.

How do we know that the rights of conscience, as the Founders called them, were first among the unalienable rights and the blessings of liberty recognized by the Declaration and the Constitution? We know that from two other sacred texts I’d like to talk to you about now, as we dedicate the First Amendment Tablet together. Those text are Thomas Jefferson’s Bill for Establishing Religious Freedom in Virginia, drafted in 1777, and Justice Brandeis’s opinion in Whitney v. California , drafted in 1927. 

Jefferson drafted his bill in Virginia months after he returned Philadelphia, where he had just completed the Declaration of Independence. He considered his Religious Freedom Bill among the three accomplishments of his life important enough to be inscribed on his tombstone, along with his having drafted the Declaration and founded the University of Virginia.

Under Virginia’s colonial religious code, all dissenters were required to support and attend the Established Anglican church. Presbyterians and Baptists could be arrested for practicing their faith or preaching the gospel. Quakers, Jews, and other dissenters could be denied the freedom to marry or to have custody of their children. Jefferson proposed not only to disestablish the Anglican Church and remove all criminal punishments for dissent, but also to prohibit all compelled support for religion of any kind. He concluded that because freedom of conscience is a fundamental right, government can regulate “overt acts against peace and good order,” but it lacks all power to “intrude into the field of opinion.”

Jefferson’s Bill sets out four reasons why government can make no law that constrains our freedom of speech, conscience, or opinion. Those four reasons were summed up by Justice Brandeis in Whitney, and they have been further developed by the Supreme Court since then:

1. Freedom of conscience is an unalienable right because people can only think for themselves;

2. Free speech makes representatives accountable to We the People;

3. Free speech is necessary for the discovery of truth and the rejection of falsehood;

4. Free speech allows the public discussion necessary for democratic self government.  

Let’s review each of Jefferson’s four reasons.

1. Freedom of conscience is an unalienable right

“Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds,” Jefferson wrote in the first sentence of his draft, “God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint.” In other words, Jefferson argued, freedom of conscience is, by definition, an unalienable right – one that can’t be alienated or surrendered to government – because our opinions are the involuntary result of the evidence contemplated by our reasoning minds. We can’t give presidents, priests, teachers, or fellow citizens the power to think for us, even if we wanted to, because we are endowed as human beings with the capacity to reason and therefore can’t help thinking for ourselves. We know that Madison, the drafter of the First Amendment, shared Jefferson’s views because he echoed them in his Memorial and Remonstrance in 1785, which persuaded the Virginia legislature to pass Jefferson’s bill. The rights of conscience are “unalienable,” Madison wrote, “because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.”

2. Free speech makes representatives accountable to We the People.

In his Religious Freedom Bill, Jefferson emphasized that it’s crucial in a democracy for citizens to be able to criticize public officials because legislators and religious leaders, “being themselves fallible and uninspired,” will always try to impose “their own opinions and modes of thinking” on others. His prediction came to a head in the controversy of the Alien and Sedition Acts of 1798, where the Federalist Congress made it a crime to criticize the Federalist President, John Adams, but not the Republican Vice President, Thomas Jefferson. And Madison, once again, echoed Jefferson’s views in his Virginia Resolution, which said the Sedition Act “ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures” which is “the only effectual guardian of every other right.”

3. Free speech is necessary for the discovery and spread of political truth.  

Jefferson concludes his Religious Freedom Bill with words expressing his unshakeable faith in the power of reasoned deliberation to distinguish truth from error, words that are inscribed in marble on the Jefferson Memorial in Washington: “truth is great and will prevail if left to herself; she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate.”

4. Free speech allows the public discussion necessary for democratic self-government.

Jefferson believed that in a democracy, all citizens have an equal right and responsibility to exercise their rights of conscience. As Jefferson put it in his Virginia Bill, “proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.”

On the Supreme Court, in the greatest free speech opinion of the twentieth century, Justice Louis Brandeis distilled Jefferson’s four reasons for protecting free speech into a few inspiring paragraphs. In the case, Whitney v. California , we see the first Jewish Justice insisting on the right of Anita Whitney, a white woman, to make a speech defending anti-lynching laws, which were designed to protect the life and liberty of African Americans. Whitney made her speech at a Communist Party meeting, and she was convicted under a California law that made it a crime to associate with organizations that advocated doctrines that might lead to people to break the law. In 1926, Brandeis had read Jefferson’s original draft of the Virginia Bill for Establishing Religious Freedom. In his Whitney opinion in 1927, Brandeis adopted and refined Jefferson’s standard for ensuring that government could only punish overt acts of lawbreaking, not the expression of dangerous opinions.

As Brandeis put it in Whitney , “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. [And] There must be reasonable ground to believe that the danger apprehended is imminent.”

Brandeis’s inspiring test – government can ban speech only if it’s intended to and likely to cause imminent and serious injury – was based on his Jeffersonian faith in the power of what he called “free and fearless reasoning” to expose falsehood through public discussion. As Brandeis put it, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” Brandeis’s test was finally adopted by the Supreme Court in 1969. As a result, the United States Supreme Court now protects free speech more vigorously than any other judiciary in the world.

Brandeis went on to summarize Jefferson’s four reasons for why government cannot make laws designed to restrict what Jefferson called “the illimitable freedom of the human mind.” And in the process he achieved a kind of constitutional poetry. I will now read Brandeis’s central passage – listen closely for each of Jefferson’s four reasons: freedom of conscience, democratic accountability, discovery of truth, and democratic self-government.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. [That’s a quotation from Pericles funeral oration]. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

But as this paragraph shows, all four of Jefferson and Brandeis’s reasons for protecting free speech are based on an Enlightenment faith in reason itself. The First Amendment is based on a faith that people will take the time to develop their faculties of reason, through education and public discussion; that public deliberation will check arbitrary and partisan demagogues rather than enable them; that more speech will lead to the spread of more truth rather than more falsehood; and that people will, in fact, take time for discussion and deliberation, rather than make impulsive decisions. 

This founding faith in reason is being questioned in our polarized age of social media. Twitter, Facebook, and other platforms are based on a business model that’s now being called “enrage to engage.” They have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace. For these reasons, some are calling for America’s free speech tradition to be reconsidered or abandoned.

Here at the National Constitution Center, by contrast, we are proud to reaffirm the faith in reasoned deliberation by consecrating the 45 words that will shine forever in this hallowed space. As a vital platform for non partisan education and debate, we bring together Americans of different perspectives to cultivate their faculties of reason. Only by listening to the best arguments on all sides of the constitutional questions at the center of American life can all of us exercise our right and duty to make up our own minds. Like Jefferson and Brandeis and Frederick Douglass and Ruth Bader Ginsburg and all of the great free speech heroes of America history, we are dedicated to preserving, protecting, and defending what Jefferson called “the illimitable freedom of the human mind.” May the shining words of the First Amendment Tablet inspire future generations with this self-evident truth: reason will always combat error as long as individuals are free to follow the dictates of conscience wherever it boldly leads. On behalf of all of us at the National Constitution Center, thanks again to Jan Neuharth and Judge Luttig for making this memorable ceremony possible, and thanks to all of you for joining us.

Download Speech Transcript

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Freedom of Speech

By: History.com Editors

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

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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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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Think of yourself as a member of a jury, listening to a lawyer who is presenting an opening argument. You'll want to know very soon whether the lawyer believes the accused to be guilty or not guilty, and how the lawyer plans to convince you. Readers of academic essays are like jury members: before they have read too far, they want to know what the essay argues as well as how the writer plans to make the argument. After reading your thesis statement, the reader should think, "This essay is going to try to convince me of something. I'm not convinced yet, but I'm interested to see how I might be."

An effective thesis cannot be answered with a simple "yes" or "no." A thesis is not a topic; nor is it a fact; nor is it an opinion. "Reasons for the fall of communism" is a topic. "Communism collapsed in Eastern Europe" is a fact known by educated people. "The fall of communism is the best thing that ever happened in Europe" is an opinion. (Superlatives like "the best" almost always lead to trouble. It's impossible to weigh every "thing" that ever happened in Europe. And what about the fall of Hitler? Couldn't that be "the best thing"?)

A good thesis has two parts. It should tell what you plan to argue, and it should "telegraph" how you plan to argue—that is, what particular support for your claim is going where in your essay.

Steps in Constructing a Thesis

First, analyze your primary sources.  Look for tension, interest, ambiguity, controversy, and/or complication. Does the author contradict himself or herself? Is a point made and later reversed? What are the deeper implications of the author's argument? Figuring out the why to one or more of these questions, or to related questions, will put you on the path to developing a working thesis. (Without the why, you probably have only come up with an observation—that there are, for instance, many different metaphors in such-and-such a poem—which is not a thesis.)

Once you have a working thesis, write it down.  There is nothing as frustrating as hitting on a great idea for a thesis, then forgetting it when you lose concentration. And by writing down your thesis you will be forced to think of it clearly, logically, and concisely. You probably will not be able to write out a final-draft version of your thesis the first time you try, but you'll get yourself on the right track by writing down what you have.

Keep your thesis prominent in your introduction.  A good, standard place for your thesis statement is at the end of an introductory paragraph, especially in shorter (5-15 page) essays. Readers are used to finding theses there, so they automatically pay more attention when they read the last sentence of your introduction. Although this is not required in all academic essays, it is a good rule of thumb.

Anticipate the counterarguments.  Once you have a working thesis, you should think about what might be said against it. This will help you to refine your thesis, and it will also make you think of the arguments that you'll need to refute later on in your essay. (Every argument has a counterargument. If yours doesn't, then it's not an argument—it may be a fact, or an opinion, but it is not an argument.)

This statement is on its way to being a thesis. However, it is too easy to imagine possible counterarguments. For example, a political observer might believe that Dukakis lost because he suffered from a "soft-on-crime" image. If you complicate your thesis by anticipating the counterargument, you'll strengthen your argument, as shown in the sentence below.

Some Caveats and Some Examples

A thesis is never a question.  Readers of academic essays expect to have questions discussed, explored, or even answered. A question ("Why did communism collapse in Eastern Europe?") is not an argument, and without an argument, a thesis is dead in the water.

A thesis is never a list.  "For political, economic, social and cultural reasons, communism collapsed in Eastern Europe" does a good job of "telegraphing" the reader what to expect in the essay—a section about political reasons, a section about economic reasons, a section about social reasons, and a section about cultural reasons. However, political, economic, social and cultural reasons are pretty much the only possible reasons why communism could collapse. This sentence lacks tension and doesn't advance an argument. Everyone knows that politics, economics, and culture are important.

A thesis should never be vague, combative or confrontational.  An ineffective thesis would be, "Communism collapsed in Eastern Europe because communism is evil." This is hard to argue (evil from whose perspective? what does evil mean?) and it is likely to mark you as moralistic and judgmental rather than rational and thorough. It also may spark a defensive reaction from readers sympathetic to communism. If readers strongly disagree with you right off the bat, they may stop reading.

An effective thesis has a definable, arguable claim.  "While cultural forces contributed to the collapse of communism in Eastern Europe, the disintegration of economies played the key role in driving its decline" is an effective thesis sentence that "telegraphs," so that the reader expects the essay to have a section about cultural forces and another about the disintegration of economies. This thesis makes a definite, arguable claim: that the disintegration of economies played a more important role than cultural forces in defeating communism in Eastern Europe. The reader would react to this statement by thinking, "Perhaps what the author says is true, but I am not convinced. I want to read further to see how the author argues this claim."

A thesis should be as clear and specific as possible.  Avoid overused, general terms and abstractions. For example, "Communism collapsed in Eastern Europe because of the ruling elite's inability to address the economic concerns of the people" is more powerful than "Communism collapsed due to societal discontent."

Copyright 1999, Maxine Rodburg and The Tutors of the Writing Center at Harvard University

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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Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment

By Fabio Bertoni

The end of the past Supreme Court term saw the release of three decisions that carry life-and-death consequences: Dobbs v. Jackson Women’s Health , which overturned Roe v. Wade; New York State Rifle & Pistol Association v. Bruen , which rejected efforts to curb gun violence; and West Virginia v. E.P.A. , which curtailed the federal agency’s ability to protect the environment. A fourth major decision of those final weeks may not hold life in the balance, but it will have radical and far-reaching consequences for the First Amendment and religious speech.

The decision in Kennedy v. Bremerton School District, written by Justice Neil Gorsuch, holds that a public-high-school football coach has a constitutional right to publicly pray at the fifty-yard line after games. Using the words “quiet” or “quietly” ten times to describe the coach’s prayers, Gorsuch dismisses any concerns that students may feel coerced to join him, as long as they are not expressly compelled to do so. The coach’s conduct, Gorsuch finds, in an opinion joined by Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, is fully protected by the First Amendment.

The First Amendment, of course, states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The establishment clause, which was cited by the school district, has traditionally been interpreted to prohibit government action that compels religious conduct, favors one religion over another, or endorses religion over non-religion. But Justice Gorsuch makes the astonishing claim that, because prayer is protected by both the “speech” and the “free exercise” references, it is “doubly protected.” This “double protection” means that the School District’s concern that the coach’s prayers run afoul of the establishment clause is outgunned, two clauses against one. Does this mean that if I (1) petition the government to (2) hold a rally supporting the (3) printing of a pamphlet about my (4) new religion, I’d be quadruply protected and could thereby trump other constitutional provisions, such as the equal protection clause of the Fourteenth Amendment? The math quickly becomes absurd.

Burt Neuborne, a professor at New York University’s School of Law, makes the compelling argument that the structure of the First Amendment is no accident. It is not a mere list of protected activities to be added to and subtracted from one another; rather, its language tracks how political ideas move from internal thought and belief to external conduct. First comes personal conviction, then public discussion and dissemination, and, finally, political action. The goal is the free expression of political will, which is essential to a functioning democracy. Neuborne’s analysis confirms what many media and First Amendment lawyers consider a truism: political speech is at the core of the First Amendment’s protections.

Protecting political speech, including speech that criticizes government officials, was the primary justification in the Supreme Court’s unanimous landmark 1964 decision in New York Times Co. v. Sullivan, which holds that government officials need to meet a very high burden of proof to succeed in defamation claims. In that decision, Justice William Brennan reasoned that, because political speech is central to democracy, “debate on public issues should be uninhibited, robust and wide-open.” According to Justice Gorsuch’s opinion, however, that long-held understanding of the central purpose of the First Amendment is wrong. In his view, it is government suppression of religious speech that is the core concern of the First Amendment, and what it was designed to protect against. Further, Gorsuch’s finding that religious speech is “doubly protected” implies that political speech—say, about voting rights or women’s rights—is only single protected.

This reasoning reveals a disturbing strain of thought: the idea that religion is under siege, and that religious speech and religious conduct in the public sphere need to be privileged. Gorsuch, in his opinion, inveighs against a government being “hostile” to religion. He specifically objects to the idea that we might “preference secular activity” over outward displays of religiosity. Instead of considering how secularism might make government activity neutral, open to believers of various faiths as well as nonbelievers, his thinking seems to be that, because of religious speech’s “double protection,” it must take precedence. Anything less is an unconstitutional assault on religion.

Gorsuch employs the cartoonishly circular argument that, because the Bremerton School District, in Washington State, didn’t want the coach to conduct prayers with his team, it clearly does not see that behavior as part of his official duties and, therefore, his praying is private religious conduct, which must be protected from government restrictions. By that logic, any religious conduct by government employees that is not part of their official duties—a D.M.V. clerk, say, who gives out religious literature to people applying for driver’s licenses, or a clerk who tries to convince gay couples that their marriage is sinful—would become protected speech.

Gorsuch argues that, if visible religious conduct of government employees is banished, then teachers will be prohibited from wearing yarmulkes or saying a prayer of thanks over a sandwich in the break room. The fact that there’s no evidence that any government office has sought to stop an employee from saying grace over their own lunch notwithstanding, that argument is a false equivalence. Such personal conduct is worlds apart from that of a coach, who may be responsible for making college or scholarship recommendations for the students on his team, openly conducting a religious practice on the field, while players and families are watching. Gorsuch writes that there was no coercion, because students were not required to participate. (Justice Sonia Sotomayor, in a dissent, included multiple photographs showing the coach kneeling in prayer surrounded by players that are evocative of a revival meeting. Even if those students willingly joined their coach in prayer, it’s likely that some students feigned belief, or felt excluded by choosing not to join the ritual.) Furthermore, the law recognizes all kinds of situations in which implied promises or threats are sufficient grounds for legal sanctions. Ask any first-year prosecutor whether an explicit threat is necessary to bring an extortion charge.

But religious maximalism is currently all the rage on the Supreme Court. Justice Alito’s opinion overturning Roe goes out of its way to dig up arcane historical references to prove that the drafters of the Constitution didn’t intend to protect abortion. But there is an inescapable sense that the Justice’s acceptance of the validity of the belief that life begins at conception is determined by his personal religious views. Alito, too, has publicly bemoaned hostility toward religion, which he calls “secular orthodoxy,” and blamed it for what he calls anti-Catholic prejudice. Justice Barrett and her family have been affiliated with People of Praise, an insular conservative Catholic group that rejects homosexuality; practices ecstatic Christian traditions, such as speaking in tongues; and is described as a “covenant community.” She testified during her Senate confirmation hearing that her religious beliefs do not influence her jurisprudence, but also that she did not view Roe as a “super precedent.” Clearly, most Justices have religious beliefs, and there are both liberal and conservative Catholics—no one should say that religious beliefs determine political affiliation. Still, the idea that religious speech (and necessarily, activity) must be protected over and above other kinds of speech—or over secularism generally—is grounded in a belief about the importance of religion in public life. But what will happen if government employees must be free to express and act upon their religious convictions in their jobs? How does a pluralist society function in that case?

Chief Justice John Roberts famously bristled at the idea that there are “Obama judges” or “Trump judges,” insisting that members of the federal judiciary do their “level best” to be fair to those who appear before them. (When I was in law school, there was no quicker way to get cut down by a professor than to cite the Justices’ political leanings as an explanation for why they had reached a particular decision.) But perhaps a clearer distinction exists between Justices who believe that the constitutional guarantee of free exercise of religion means that government employees must be able to wield their religious beliefs unconstrained, and those who believe that, in a pluralist society, people have the right not to have the religion of others foisted upon them by government employees. As the old saying goes, “Your right to swing your arms stops where my nose begins.” Telling government employees to stop swinging their religion at the public should not be unconstitutional. ♦

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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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