Constitutional Law II: Lecture Five - The First Amendment – Speech, Religion, Press, Assembly, and Petition
These sources collectively explore the multifaceted nature of the First Amendment to the U.S. Constitution, which protects fundamental freedoms including speech, religion, press, assembly, and petition. They differentiate between fully protected, less protected, and unprotected categories of speech, with particular emphasis on incitement to imminent lawless action as defined by Brandenburg v. Ohio and the protection extended to offensive public discourse in Snyder v. Phelps. The texts also examine the historical evolution and current challenges facing press freedom in the digital age, suggesting a potential need to distinguish the press clause from the speech clause for the sake of professional journalism's viability. Finally, they highlight the often-overlooked right to petition, detailing its historical significance as a direct means of government redress for citizens, including marginalized groups, and its diminished role today compared to its robust past.
The five distinct freedoms protected by the First Amendment are speech, religion, press, assembly, and petition. These rights form the foundation of American democratic society by limiting government interference in personal expression and political engagement.
Protected speech includes political discourse and symbolic expression, safeguarding unpopular or dissenting views, and is generally immune from government censorship. Unprotected speech, however, falls into narrow categories like true threats or obscenity, where the speech directly causes substantial, socially unacceptable harm and can be punished.
Clarence Brandenburg was convicted for advocating violence under Ohio's criminal syndicalism statute. This statute broadly prohibited the mere advocacy of violence as a means of political reform, which the Supreme Court found unconstitutional.
The three elements of the "imminent lawless action" test are: the speech must be directed to inciting lawless action, the lawless action must be imminent, and the speech must be likely to incite or produce such action. All three must be met for speech to lose its First Amendment protection.
Brandenburg v. Ohio replaced the "bad tendency" test (from Whitney v. California) and effectively overturned the "abstract advocacy" standard (from Dennis v. United States). It shifted the focus to speech that directly incites immediate and likely unlawful action, protecting mere advocacy of violence.
Justice Douglas's "absolutist" position argued that the phrase "no law" in the First Amendment should be interpreted very literally, meaning nearly all speech should be immune from prosecution regardless of governmental interests. He believed the "clear and present danger" test had been misused to suppress legitimate First Amendment claims.
A "content-based" regulation restricts speech based on its message or subject matter and is subject to strict scrutiny. A "content-neutral" regulation, conversely, regulates the time, place, or manner of speech, regardless of its content, and is subject to intermediate scrutiny.
Prior restraint is an administrative system that prevents speech from occurring before it is published or expressed. It is highly disfavored because the Supreme Court views it as the "most serious and least tolerable infringement" of First Amendment rights, carrying a heavy burden for the government to justify.
Historically, the right to petition allowed individuals to formally file grievances with Congress for review and response, often leading to investigation or hearings. Today, online petitions often lack this formal process; they are frequently political theater and typically do not receive official congressional review or response.
An example of symbolic speech protected by the First Amendment is burning the American flag, as ruled in Texas v. Johnson. This act, though offensive to many, was recognized as a constitutionally protected form of conveying a political message.
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