The First Amendment

- [Kim] Hi, this is Kim from Khan Academy, and today I'm learning more about the First Amendment to the US Constitution. The First Amendment is one of the most important amendments to the Constitution, if not the most important. It 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." To learn more about the First Amendment, I talked to two experts. Erwin Chemerinsky is the Jesse H. Choper distinguished professor of law and dean of Berkeley Law. Michael McConnell is the Director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. Professor Chemerinsky, there is a lot going on in the First Amendment. Can you tell us a little bit more about why the framers chose to protect these rights in particular? - [Erwin] The historical background of the First Amendment of the Constitution shows why the framers wanted to be sure that all of the liberties in the First Amendment were safeguarded. Let's focus on freedom of speech and freedom of the press. In England, there was, after the printing press developed, licensing so that anyone who wanted to be able to publish anything needed to have a license from the government. As such, licensing was seen to be inconsistent with freedom of speech, freedom of the press; for that matter, freedom of thought, freedom of inquiry. - [Kim] Interesting, okay, so there are a lot of essential freedoms that are packed into this First Amendment, so much that it's almost amazing that we're gonna attempt to talk about them all in one video. But if we dial in to freedom of speech, Professor McConell, what is freedom of speech? Does that encompass some things and not others? - [Michael] Well freedom of speech was actually less important to the framers than the freedom with which it was coupled, which was the freedom of the press. The reason for this is that speech that can reach large audiences is much more important to the individual but also dangerous to the state, than mere speech. When you speak, only those people within hearing range can hear you, but when you are able to use Gutenberg's fantastic new technology to publish your sentiments and distribute them widely, maybe even over the entire country or across the Atlantic, reaching hundreds of thousands of people. Now that is powerful. You think about how the American Revolution was won. This required spreading the word, it required gaining converts and telling people what their grievances were. To a very great extent this was done through the mechanism of the printing press. - [Erwin] When you ask the question, "What's freedom of speech?" there's implicit within it the issue of, 'What do we mean by speech?' Ultimately, the answer to your question is that the First Amendment, in protecting speech, broadly safeguards a right to express one's ideas. But it's not absolute. The government can restrict expression if there's a compelling interest. - [Kim] Interesting, can you say more about that? - [Erwin] The Supreme Court always has been clear that freedom of speech is not absolute. The Court has said that there are certain categories of speech that are unprotected by the First Amendment. Incitement and illegal activity is a category of unprotected speech. The Court has said this requires showing that the speech was directed at causing imminent illegal activity, and there is a substantial likelihood of imminent illegal activity. Another example: obscenity is unprotected by the First Amendment. The Court struggled for years with trying to define, 'What is obscenity?' Maybe the low point in that is when Justice Potter Stewart said, "I can't define it, but I know it when I see it." There are also these categories of speech where the government can prohibit, even punish the expression. - [Michael] That's where most of the limitations on the freedom speech and of the press come from, is in order to make sure that we don't hurt other people's rights through the use our own. An example of that, the government can prohibit speech which incites violence against someone. So if you're making a speech and calling upon the crowd to attack somebody's house or their person, that can be punished and prevented as an incitement to violence. You can see how that follows from the logical idea of freedom of speech being a natural right, and therefore limited by the rights of other people. - [Kim] So let's turn our attention toward the freedom of religion part of the First Amendment. So the first thing that the Amendment says is about establishment. What does the Establishment Clause prevent? - [Erwin] The language of the First Amendment is important, it says that Congress may make no law respecting the establishment of religion. Since 1947 the Supreme Court has said that that also applies to state and local governments. The Supreme Court has said this means that the government cannot act with the purpose of advancing religion. - [Michael] To the founders, this was a very clear legal concept, namely it was the established Church of England that in the statute books, in the law, the Church of England was referred to as, and I quote, "The Church by law established." What did it mean to be established? First of all, it meant that the doctrines of the Church, the 39 Articles of Faith of the Church of England, were voted upon by parliament. So the doctrines, the liturgy, the text, were all adopted by law. The established Church was the government's church, and it could be used, and from time to time was used, as a instrument of government or as an instrument of politics. This is a way in which the government is able to have a powerful influence on the way in which values and opinions are inculcated. It's one of the most important ideas of the established church, especially in the 18th century, was to teach that there's actually a religious obligation to obey the law and to recognize the king as the supreme leader in matters of both church and state. The framer's experience with this was extremely powerful. - [Erwin] That's because the framers were aware of the religious persecution that had gone on in other countries. They were aware of the evils that occur when the government becomes aligned with a particular religion. - [Michael] The principal reason why many of the colonists had come to these shores to begin with was to escape the oppressions of the established Church of England back home, and to come to a place where they would be able to exercise the freedom of religion for themselves. The main opponents of the established church were not anti-Christian or anti-religious people. They were the most religious people, and their view was the government should stay our of our church, that we will decide what we believe for ourselves, we will control our own church, we will write our own liturgy, we will decide what version of the Bible we're going to use, we'll choose our own ministers. Thank you very much government, stay out of it. Leave us free to practice our religion without having this kind of an establishment. - [Erwin] For instance, a county in Kentucky required that the Ten Commandments be posted in all county buildings. The Supreme Court said, "The Ten Commandments "are religious scripture. "There's no secular purpose for having the Ten Commandments "posted in county buildings." The Court declared it unconstitutional. The Supreme Court has said, "The government can't act "where there primary effect "is to advance or to inhibit religion." For example, there can't be prayer in public schools. Even voluntary prayer in public schools in impermissible, because the Court has said that the primary effect of having prayer in public schools is to advance religion. The Court has explained that children will inevitably feel pressure to participate, and this coercion violates the Constitution. - [Kim] So, the First Amendment then prevents that kind of intermingling of the government and the church. This is I guess the key idea of separation between church and state, but it also says that the Congress shall make no law prohibiting the free exercise of religion. So what does that mean? - [Michael] Free exercise of religion was the right to practice your own religion. It didn't keep the government from setting up a church, but it did keep the government from requiring you to attend that church, maybe even to contribute to the church, but also kept the government from preventing you from worshiping elsewhere. So the Establishment Clause by and large prevents the government from forcing people to participate in religion, and the Free Exercise Clause by and large prohibits the government from preventing people from practicing their religion. Those two things work together to enable everyone to worship God in accordance with their own conscience. - [Kim] Interesting. So you mentioned a little bit about freedom of the press, but there are two other aspects of the First Amendment: the right of the people peaceably to assemble, and to petition the government of a redress of grievances. So what is included with the right to peaceably assemble? Are there any situations where that might be restricted? - [Erwin] The Supreme Court has said that under freedom of speech, there's a right to use government property for speech purposes. This is also something that tells the freedom of assembly. The Supreme Court has said there's certain government properties that the government is required to make available for speech: sidewalks and parks. There's other places where the government has more latitude to regulating speech: school facilities, evenings and weekends. There's places where the government can close entirely to speech: military bases, areas outside prisons and jails. All of these cases could have been litigated under freedom of assembly. Some of the earlier cases explicitly mentioned freedom of assembly, but subsequent cases combined freedom of assembly into the protection of freedom of speech. - [Kim] I guess that makes sense, But what about something like a march, for example, that might, say, block traffic. That's perhaps a clear case when there is this tension between freedom of speech and assembly and say, public safety, if they're blocking, say, an ambulance. How do you resolve that tension? - [Michael] Sometime in roughly the 1970s, the Court began using a quite different way of looking at the free speech question, in which they said that laws which regulate or prohibit speech on the basis of the content of the speech are, generally speaking, unconstitutional, absent a very important governmental purpose. But the laws that are content neutral, and regulate speech from a basis of it's time, place, or manner are permitted. So the basic idea here is the government has regulatory authority over speech, but not over what you say. Just over when you say it, where you say it, how you say it. - [Kim] So, the last thing in the First Amendment is the phrase "petitioning the government "for a redress of grievances." Congress shall make no law abridging that freedom. What does this mean? How would one petition the government for a redress of grievances? - [Erwin] There are of course many ways that people can petition government for redress of grievances. It's the ability to go and testify before our legislative body. It's the ability to communicate with one's leglislators or representatives about change. It's basically the ability to go to the government and ask it to change its policy. There are relatively few cases just about the right to petition government for redress of grievances. Again, I think the reason for that is, it's been so subsumed into the protection of freedom of speech. Everything one would do by way of petitioning government for redress of grievances is through speech and expression, and so the larger protection of speech and expression has meant that the Court hasn't needed to focus so much on this particular right. - [Kim] Is there anything that you feel people commonly misunderstand about the First Amendment, what it encompasses and what it does not? - [Erwin] One of the most important misunderstandings about this First Amendment, is that people fail to realize that it, like all rights in the Constitution, apply only to the government. Before I took my current job, I was a professor at Duke University in Durham, North Carolina. Duke is a private university. If while I was there, I had criticized the president of the university, and he would have ordered me fired, I could not have sued him or Duke University for violating my free speech rights. The First Amendment doesn't apply because it's a private university. Now I'm at the University of California, a state university. If I were to give a speech criticizing the president of the university, or the chancellor of my campus, and I was to be fired for doing that, I could sue. I would sue, because this is a public university. The First Amendment applies. - [Michael] So I think the really dangerous thing in our times is that many people believe that they have some kind of a right not to hear opinions that they find offensive. Certainly college campuses are filled with controversies of this sort. This is something that our Constitution was designed to prevent. Free speech can inflict offense. Sometimes it can be hurtful and insulting, but we as a nation have decided that it is better to put up with that so that we can all be free to express ourselves, to criticize the government, to urge the religious and scientific and artistic ideas that we have. It's more important for all of us to do that than it is to be able to retreat to safe spaces and require other people to shut up. - [Kim] So we've learned that the rights protected in the First Amendment derive from the historical context of restricted speech, press, and religion in Europe that the framers wished to avoid in the United States. Freedom of religion includes both the freedom not to participate in religion, and the freedom to practice whatever religion you choose. Freedom of speech extends to all forms of freedom of expression, not just words, but there are limits to what counts as free speech. To learn more about the First Amendment, visit the National Constitution Center's interactive Constitution, and Khan Academy's resources on US government and politics.