First Amendment For Beginners

By Michael J. LaMonica and Jeff Fallow

Join Michael LaMonica, author of French Revolutions For Beginners, as he takes you on a journey through the ins and outs of an amendment that means so much more than just freedom of speech. First Amendment For Beginners will explore some of the biggest cases ever to come before the Supreme Court and answer questions such as whether it really is okay to shout “fire” in a crowded theater, wear a T-shirt that reads “F**K THE DRAFT!” (without the asterisks) into a courthouse, burn the flag, burn your draft card, join the Communist party, sell nudie magazines, ban Ku Klux Klan marches, and publish confidential government secrets in a newspaper, to name just a few. The religion clauses are included too, with pertinent questions such as whether the First Amendment protects your right to use psychoactive drugs in religious rituals, marry multiple partners, or engage in animal sacrifice. The book also wades into the political maelstrom to examine recent controversies such as whether money really equals speech and if corporations have constitutionally protected rights to speech and religion.

Whether you’re a court watcher, political junkie, history buff, civil libertarian, news enthusiast, or just curious about the most important amendment in the Constitution, this book is for you!

• Language: English
• Publisher: For Beginners
• Release date: May 8, 2018
• ISBN: 9781939994752

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INTRODUCTION

FEW STATEMENTS OF LAW AND GOVERNMENT INSPIRE as much passionate argument as the First Amendment to the US Constitution. In just 45 words, it acts as both the vanguard provision of the Bill of Rights—the fixed star in our constitutional constellation, according to Justice Robert Jackson—and a political lightning rod that attracts controversy. While support for the First Amendment is in many ways one of the last remaining points of bipartisan consensus in America, the way in which we interpret its meaning remains hotly contested, touching on the perpetual question of how to balance the rights of the individual against the needs of society at large. This is not just a modern phenomenon. The fight over the First Amendment has been going on since its ratification in 1791.

The language of the First Amendment, written in less-than-crystal-clear 18th-century prose, 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.

The text seems to raise more questions than provide answers. For instance: What exactly does it mean to establish a religion? Do I have the right to exercise my religious beliefs even if they violate the law? Is all speech protected, absolutely, all the time? Can the press publish anything it wants? Why does the First Amendment prohibit only Congress from restricting these rights? Does that mean my state or my boss at work can take away my freedom of speech?

The first part of this book begins to tackle these questions by exploring both the historical background of the First Amendment and the structure of the federal judiciary. Nothing is decided in a vacuum, and the Founding Fathers, for all their well-earned accolades, did not pull the First Amendment out of a tricorn hat. We will also look at how the Supreme Court got the power of judicial review (it's not mentioned in the Constitution) and figure out just what the heck the common law is anyway.

The second part of the book takes up the Establishment and Free Exercise clauses of the First Amendment, known collectively as the religion clauses. You might have heard of these passages as having something to do with the separation of church and state, but strangely enough, that phrase appears nowhere in the First Amendment either. Thus, we are left with questions such as: Does the Constitution allow for parochial school voucher programs, prayers during graduation ceremonies, or displays of the Ten Commandments on public property? And what do we do when the exercise of someone's religion conflicts with secular laws in some way? These are all tricky matters that the Supreme Court has struggled with over the years.

In the third section, we explore freedom of speech and freedom of the press. Again, how can we know what and where the limits are when the wording of the First Amendment appears to be so absolute? Here we'll look at cases that ask whether it really is OK to shout fire in a crowded theater; to wear a T-shirt into a courthouse that says F**K THE DRAFT! (without the asterisks); to burn the American flag; to join the Communist Party; to sell nudie magazines; to ban Ku Klux Klan marches; or to publish confidential government secrets. We will also delve into some First Amendment questions that have taken on a new political life in recent years—namely, whether money equals speech, whether corporations are entitled to constitutional protections, and to what extent governments can regulate spending on political campaigns.

1

BRIEF HISTORY OF THE FIRST AMENDMENT

BEFORE WE DIVE INTO THE SUBSTANCE OF THE First Amendment, let's start with a bit of history. The Founding Fathers did not think up the ideas of freedom of speech, religion, the press, and the rest all by themselves. Many of these rights had a long pedigree extending back into the misty recesses of the Middle Ages, and their implementation in the American system was a far messier process than you might have learned about in high school.

The foundational document for the First Amendment, and indeed the entire structure of constitutional government, is everyone's favorite piece of 13th-century moldy parchment: the Magna Carta, or Great Charter. That historic document arose out of a feudal dispute between England's King John I (of Robin Hood fame) and his power-hungry barons. In 1215, the beleaguered king was forced literally at sword-point to sign a piece of paper that placed limits on his power. The Magna Carta recognized the barons' right to a speedy trial and due process of law, protected them from arbitrary arrest and seizure of property, and forbade the king from levying taxes without consent. Far from being a liberal document that benefited the common man of the kingdom, the Magna Carta served the interests of the nobility—but at least it was a start!

The circulation of ideas brought about by the printing press and the renewal of conflict between the king, nobility, church, and parliament in 16th-century England led a newly educated class to reimagine the relationship between the individual and the state. To them, the Magna Carta embodied ancient freedoms and natural rights that all people possess and that government cannot infringe upon. Parliament attempted to reign in the autocratic Charles I in 1628 by having him ratify the Petition of Right, which reaffirmed the Magna Carta and went further by both guaranteeing the right of habeas corpus and requiring consent of the owner to quarter troops in a private home (both also covered in the U.S. Constitution). Such measures were short-lived, however, as the outbreak of the English Civil War led to the beheading of Charles I in 1649, tabling for the time any further discussion about rights of speech, religion, assembly, and the press.

The English Civil War also had a formative impact on the North American colonies that would one day become the United States. The war fractured the colonies along political, religious, and geographical lines. Fiercely independent New Englanders favored the Puritanical Parliamentarians, and in 1641 the Massachusetts General Court passed a comprehensive Body of Liberties that guaranteed to all its people, for the first time, the rights to speech, assembly, and petition. Anglican colonies such as Virginia sided with the Crown, while Catholic Maryland saw the only battle of the English Civil War fought on American soil.

However, the seed of constitutionalism continued to blossom in the colonies both during and after the war, as the Maryland Toleration Act of 1649, the Rhode Island Charter of 1663, the West Jersey Concession and Agreement of 1676, and the Pennsylvania Charter of Privileges of 1683 all guaranteed religious freedom to Christians regardless of denomination—a very liberal gesture in its day!

The next formative event in First Amendment history was England's Glorious Revolution of 1688. Protestant parliamentarians, sick of the growing Catholicism and authoritarianism of King James II, decided to give him the royal boot and invited William of Orange, the leader of the Netherlands, to rule as a co-monarch with James's daughter, Mary. Upon the downfall of James II, revolts broke out throughout New England, New York, and Maryland, as disgruntled colonists forcibly ejected their hated royal governors. William and Mary, within months of taking power, ratified the most comprehensive grant of rights and freedoms to date: the Bill of Rights of 1689, the direct, lineal ancestor of the U.S. Bill of Rights.

This transatlantic conception of rights continued to evolve over the course of the 18th century, as the famous English jurist William Blackstone systematized and rationalized the messy English common law system (more about this in Chapter 2) in his magnum opus, The Commentaries on the Laws of England (1765–69). In that work, equal parts legal treatise and political polemic, Blackstone describes how the English common law system uniquely preserved the ancient rights and freedoms of the individual against absolute monarchy. Blackstone's masterful combination of law, politics, and philosophy was a hit among the new American elite. Over 2,000 copies were sold in Philadelphia alone, and Blackstone's hefty multivolume work graced the bookshelves of such colonial luminaries as Alexander Hamilton, John Jay, John Adams, John Marshall, and Thomas Jefferson.

Despite the growing belief that there were areas of individual life that should be free of state interference, the law in America lagged behind that principle for most of the 18th century. Many of the colonies continued to have official churches and afforded little protection to speech. The coming of the American Revolution began to change this dynamic. Under the direction of Thomas Jefferson, Virginia in 1776 became the first colony to pass a comprehensive Declaration of Rights, guaranteeing the inherent rights of freedom of speech, religion, and the press, among others. The exigencies of war quieted most philosophical discussion of individual rights for the time being, as the fledgling nation fought for its more immediate right to exist.

The Treaty of Paris recognized American independence in 1783, and for the next six years the country continued to operate under the loose legal framework of the Articles of Confederation. That rickety structure proved unworkable, however, and the entire document was scrapped in favor of a new constitution. Representatives of the various states met for a constitutional convention in Philadelphia during the summer of 1787 and created a new governing document for the nation. Left out, at least at first, was an explicit guarantee of individual rights.

The failure to include a bill of rights in the original Constitution almost sank the entire venture. Some of the biggest names of the revolutionary cause came out against it and urged their state legislatures not to ratify the document. Alexander Hamilton argued forcefully in favor of ratification without a bill of rights, explaining in the Federalist Papers that such an explicit guarantee was not only unnecessary but also counterproductive. It could be viewed, he argued, as a grant of rights from the government—a grant that might be revoked at whim—and limit the rights retained by the people only to those enumerated in the document.

Hamilton's argument did not carry the day, and many states, including his own New York, refused to ratify the Constitution if it did not contain a bill of rights. Sam Adams and John Hancock of Massachusetts came up with a compromise: the states would ratify the Constitution but draw up a list of amendments for the first Congress to take up that would form the Bill of Rights. Virginia's James Madison led that campaign and drafted amendments explicitly guaranteeing rights contained in the Magna Carta, the English Bill of Rights, and the various colonial charters. Three-fourths of the states voted in favor of the first ten amendments, and they became part of the Constitution on December 15, 1791.

The remarkable thing about this whole episode is that, after all the sound and fury over the necessity of a bill of rights, people seemed to forget about it almost as soon as it was adopted. The Supreme Court took a hands-off approach on the First Amendment until the 20th century. Why? We'll see in the chapters ahead.

2

THE SUPREME COURT: MEN (AND WOMEN SINCE 1981) IN BLACK

NO EXAMINATION OF THE FIRST AMENDMENT WOULD be complete without an overview of the institution responsible for its interpretation: the United States Supreme Court. In this chapter, we will discuss why the Supreme Court has the final say on First Amendment issues, how a First Amendment case makes its way to the Supreme Court, and the ways in which the justices attempt to determine the meaning of its passages.

Article III of the Constitution establishes the size, scope, organization, and role of the federal judiciary. It is amazingly short; you can fit most of the text on a cocktail napkin. Section 1 vests all judicial power in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. This means that the only constitutionally mandated court is