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.”
1789
“Though the practice of animal sacrifice may seem abhorrent to some, religious belief need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
–Justice Anthony Kennedy
Church of Lukumi Babalu Aye v. City of Hialeah, June 1993
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“A law that can be directed against speech found offensive to some portion of the public can be turned against minorities and dissenting views to the detriment of all… The First Amendment does not entrust that power to the government’s benevolence. Instead our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
–Justice Anthony Kennedy
Matal v. Tam, June 2017
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“The holding of meetings for peaceable political action cannot be prescribed.”
–Chief Justice Charles Evans Hughes
De Jonge v. Oregon, 1937
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“[A] private citizen exercises a constitutionally protected First Amendment right anytime he or she petitions the government for redress; the petitioning clause of the First Amendment does not pick and choose its causes. The minor and questionable, along with the mighty and consequential, are all embraced.”
–The Hon. Neil Gorsuch
Van Deelen v. Johnson, 2007
Freedom of speech and freedom of religion are, today, freedoms most Americans have taken for granted for almost two hundred years. Freedom of religion, in particular, is so deeply woven into our national fabric that we rarely bother to argue about it. Of course Congress has not established a state sponsored religion. Of course we are free to practice any religion we choose —or none at all— we are Americans. Our faith has nothing to do with our government.
In fact, freedom of religion is so deeply ingrained in our national consciousness that if you asked the average American to describe a “First Amendment” issue he or she would probably say something about freedom of the press. Most major legal battles in the past few decades involving the First Amendment have involved the press. What is the line between free speech and libel? Does “the press” —a term that legally includes television, podcasters, documentarians, radio personalities, bloggers and, possibly, some internet platforms as well as the traditional print press— have the right to publish government secrets? Does the press have the right to publish documents that were “illicitly” obtained? Or photographs obtained as a result of trespassing? Is blasphemy free speech? Is pornography free speech? Is doxing a legitimate press practice?
In general the courts have, even in the most controversial instances, agreed that government has a limited right to limit free speech. (Even pornographers have been granted a wide latitude. In general, in recent decades, legally they have only been limited to “adult” forums.)
However, while most Americans are aware that the First Amendment protects “the press” —and, if we are tempted to forget, the press and an army of lawyers are eager to remind us— we often forget that the First Amendment also protects the individual’s right to free speech.
As individuals, as citizens, we have rights that are no less protected than those of a journalist. We also have rights —not privileges, rights— that would have been considered unimaginable in Western Europe in the late 18th century.
The rights the United States’ founders enshrined in the First Amendment of our Bill of Rights were “rights” no European of the 18th century had.
The press of Western Europe routinely had to deal with government censors. Printing an unapproved story, printing something a monarch or government official found offensive, could be considered an act of sedition or treason in the 18th century. The press of Eastern Europe was almost non existent in the 18th century, but there censors ruled with an iron fist. Tsarist Russia was notorious for censoring not just journalists, but novelists, academics, playwrights and poets as well. (The censorship of Tsarist Russia would become the building blocks of the even more brutal censorship of Soviet Russia. By one point in the 20th century roughly ten percent of the population of Soviet Russia would be imprisoned in forced labor camps.)
The United States’ commitment to the concept of the individual’s right to speak freely was almost completely unique in the 18th century. Sadly freedom of speech would remain unusual in most of the rest of the world for most of the next two centuries.
The United States’ willingness to allow —and encourage— citizens to publicly assemble (peaceably) or seek redress from the government was equally radical in the 18th century. One of the main causes of political violence in the Thirteen Colonies in the 1760s was because colonists had assembled to protest and colonial officials had reacted (sometimes violently) to suppress dissent.
Subjects of an 18th century monarch did not have a right to seek a redress of grievances. (There were ways an 18th century man or woman could seek redress, but it generally involved seeking a favor from those in power rather than an acknowledgement of any individual rights.)
The concept that the individual (regardless of status or connections) had specific individual rights —the right to speak, publish, assemble, worship or petition— were radical uniquely American concepts in the late 18th century. Sadly, over two hundred years later these are still (in much of the world) radical concepts and many Americans do not realize today that when we say whatever we want, blog, buy any book we want, protest or not, sign petitions, worship or not as we choose, that we are exercising rights that are enshrined in the Bill of Rights. Our rights are not universal rights, and in much of the world, for much of human history, the rights we take for granted —the rights we assume are universal— were privileges, not rights.
Perhaps the most startling of those rights —and the right least understood today— is the right to worship (or not) free from government interference. Faith is embedded in American culture and American history. (So is deism, agnosticism and atheism.) The United States is a country where religious belief matters, but is not mandatory and the faith you follow is not mandated or proscribed by the government. To Europeans of the 18th century the concept of a country with genuine religious diversity (without massive religious conflict) was utterly bizarre. And dangerous. In England in the 18th century (and today) the head of state was also the head of the state church. On the continent there were Catholic countries and Protestant countries and life was often extremely difficult for those who belonged to religious minorities. (A significant number of the private schools still extant in the United Kingdom were founded in the 18th and 19th centuries by members of “conformist” religious groups who wanted a non Church of England educational option.)
In the 21st century a significant portion of the “educated elite” of Western Europe have layered a fashionable distaste for belief onto a centuries long tradition of belief being sponsored or mandated by the state.
Diversity of faith and an intensity of actual belief without widespread religiously motivated violence is an almost uniquely American phenomenon.
Our willingness to believe, speak freely, argue, assemble and defend our rights is a testament to belief in the American experiment. When we decide that faith is dangerous, free speech too painful and public dissent is unacceptable we have lost what it means to be American, to be exceptional, to be individuals with shared rights and different experiences instead of cogs in a collective.
So the next time you hear someone say “you can’t say something” realize that you can. It is your constitutionally protected right. It is your choice. Just as it is your choice to believe or not.