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Video transcript

I'm Walter Isaacson of the astronaut suit I'm with Jeffrey resident of the National Constitution Center we've been talking about the document that sets forth our nation the Constitution and now we're on to the Bill of Rights let's just start with the First Amendment Congress shall make no law respecting an establishment of religion okay let's stop there what does that mean well the states at the time of the Bill of Rights had established religion congregation ilysm and unitarianism and Massachusetts and Connecticut and so forth so at the very least this clause is designed to prevent Congress from creating a national church that would disestablish the state establishments so if you want to get a little complicated it's an anti anti disestablishment clause it's basically saying the reason Congress can't set up the National Church but the reason it can't do that is because the states have to be free to maintain their own so another words the state under the Constitution could establish religion well at the time of the framing they could however after the Bill of Rights was incorporated against the States after the passage of the Fourteenth Amendment states can no longer establish religion either there's some scholars think that it was wrong to incorporate the Establishment Clause against the states and deed Justice Clarence Thomas has taken that position he says apparently that the states if they choose should be free to set up established religions today Wow and it says though that it can't prohibit the free exercise of religion is that add something to that it sure does there's a difference between establishing a church which the Establishment Clause prohibits and creating exemptions for religiously motivated individuals who want to be free from a bang generally applicable laws so just recently we had a controversy over whether religiously motivated corporations who don't want to provide contraception coverage under the Affordable Care Act should get an exemption that case was litigated under the so-called religious freedom restoration act but some people also think that to compel these corporations to provide the coverage would have violated their free exercise rights under the First Amendment and when did we end up getting what we call separation of church and state well the metaphor Thomas Jefferson had used a version of it George Washington had talked about toleration for the Jews of Newport but it wasn't until the post-war period that the principle was formally established that in striking down school prayer the supreme court said that states had to respect the separation of church and state and that was when the First Amendment really got up and running and the amendment goes on to say that Congress shall make no law abridging the freedom of speech or of the press or the right of the people peaceably to assemble this seems to be the real core of what we were fighting for in our revolution if you had to pick out three central words of the Bill of Rights that would have to be freedom of speech or I get for the freedom of speech absolutely the speech of James Otis denouncing the writs of assistance the other pamphlets filed by the colonists criticizing King George the Declaration of Independence itself all were centrally rooted in this idea that freedom of speech was a natural right that came from God and not from government and that the British system which was to punish people for seditious libel in other words for criticizing the king was an offence under the British system the truer the libel the greater the crime in other words if you said something bad about the King that was true then you go to jail for even longer madison and jefferson in the Virginia and Kentucky resolutions criticized the Adams administration for trying to criminalize its critics in the so-called alien and sedition acts which remarkably criminalized speech against the Federalists President Adams but not against the Republican vice president Thomas Jefferson it wasn't until the 1960s if the Supreme Court formally repudiated seditious libel and said that speech can only be banned if it threatens to cause imminent lawless action but these let's call them forwards the freedom of speech the most litigated the most generous example of how we're litigating the freedom of speech today it is impossible to think of a topic that's not being litigated as the freedom of speech from campaign finance reform with a Supreme Court held that corporations have the same free speech rights as natural persons to the funeral protests where the Supreme Court said that you can say hateful things in front of funerals even if they're deeply offensive to the question of whether abortion protesters can be prohibited from approaching people near a clinic most of our most hotly contested questions involve freedom of speech it's remarkable what a bipartisan agreement there is about the centrality of the First Amendment there are cases striking down vile and offensive videos that depict defense against animals for example or violent restrictions on violent video games all of these laws have been repudiated by bipartisan majorities of the Supreme Court really the American free speech tradition is the crown jewel of our constitutional tradition it's the one thing that distinguishes us from Europe which at this very moment is recognized abroad new right to be forgotten in the European forcing people to take down google links which in a way is a real abridgement of a freedom of speech according to the American tradition speech cannot be banned if even if it's offensive unless it threatens to cause imminent violence that's a remarkable achievement and it's interesting that once again this is something that cuts across liberal and conservative you can have a Scalia as well as a Ginsburg be very absolutist on freedom of speech at times completely so the justices most passionate about speeches Justice Anthony Kennedy but it's inspiring to see these 920 opinions protecting the speech we hate as justice Oliver Wendell Holmes called it because the justices field is what it comes down from that march in skokie illinois lunch when the nazis got to march and the supreme court was very clear that you know can't stop that right it's most important to protect the speech of those we hate and finally it says or of the press right here does that give a special status to the press is the speech of a journalist more important than that of an ordinary Simpson well some people think that it should have special status and in fact Justice John Paul Stevens in his dissenting opinion in the Citizens United case said it's appropriate to treat the newer times which is a for-profit corporation differently than Exxon because the press Clause of the First Amendment signals out the press as deserving special constitutional protection in that kind of confuse in a day when anybody can be a blogger sure is and that's why bloggers have been the main opponents of so-called journalist shield laws because shield laws are based on the idea that you have to distinguish between the professional press and everyone else and now that everyone with Wi-Fi is a journalist that's a line that's pretty hard to draw well once again it shows our Constitution remains a living document it does indeed and yet always rooted in the original understanding of the framers thank you thank you