First Amendment Rights: Criminal Law Applications

The First Amendment of the United States Constitution is a cornerstone of American democracy, protecting the fundamental freedoms of religion, speech, press, assembly, and petition. It acts as a safeguard against government interference in these areas, ensuring that individuals can freely practise their religion, express their views, assemble peacefully, and petition the government. The Supreme Court has played a crucial role in interpreting and applying the First Amendment, with landmark cases shaping our understanding of protected speech, religious freedom, and the rights of students in schools. While the First Amendment only expressly applies to Congress, the Supreme Court has interpreted it as extending to the entire federal government and preventing state governments from interfering with these rights. This amendment has had a profound impact on criminal law, limiting the government's ability to prosecute individuals for their speech, religious practices, and assembly, thus ensuring that citizens can exercise their rights without fear of retribution.

Freedom of religion

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. Two clauses in the First Amendment guarantee freedom of religion: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause

The Establishment Clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state". The precise definition of "establishment" is unclear, but it historically meant prohibiting state-sponsored churches, such as the Church of England.

Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman (1971). Under the "Lemon" test, the government can assist religion only if:

• The primary purpose of the assistance is secular.
• The assistance must neither promote nor inhibit religion.
• There is no excessive entanglement between church and state.

The Free Exercise Clause

The Free Exercise Clause prohibits the government, in most instances, from interfering with a person's practice of their religion. It protects citizens' right to practice their religion as they please, as long as the practice does not conflict with "public morals" or a "compelling" governmental interest.

For example, in Prince v. Massachusetts (1944), the Supreme Court held that a state could force the inoculation of children whose parents refused for religious reasons. The Court ruled that the state had an overriding interest in protecting public health and safety.

Conflict Between the Two Clauses

Sometimes, the Establishment Clause and the Free Exercise Clause come into conflict. In these cases, federal courts help to resolve such conflicts, with the Supreme Court serving as the ultimate arbiter.

In conclusion, the First Amendment's two provisions concerning religion – the Establishment Clause and the Free Exercise Clause – work together to ensure freedom of religion and protect citizens' right to practice their religion without government interference, while also maintaining the separation of church and state.

Freedom of expression/speech

The First Amendment of the United States Constitution protects the right to freedom of expression, including freedom of speech and freedom of the press, from government interference. The Supreme Court interprets the extent of the protection afforded to these rights.

The First Amendment states that "Congress shall make no law...abridging freedom of speech." This means that individuals are free to express themselves without government interference or regulation. The right to freedom of speech allows individuals to express themselves through words, actions, and other mediums of expression. It is recognised as a human right under Article 19 of the Universal Declaration of Human Rights.

The Supreme Court has ruled that the government must provide substantial justification for interfering with the right to free speech. Generally, a person cannot be held liable, either criminally or civilly, for anything written or spoken about a person or topic, as long as it is truthful or based on an honest opinion. However, the right to free speech is not absolute and does not include the right to incite imminent lawless action, make or distribute obscene materials, or burn draft cards as an anti-war protest.

The First Amendment also protects freedom of the press, which allows individuals to express themselves through publication and dissemination of information, ideas, and opinions. This right applies to a wide variety of media, including newspapers, books, plays, movies, and video games. It does not afford members of the media any special rights or privileges not afforded to citizens in general.

The First Amendment's protection of free speech and freedom of the press is not limitless. The level of protection afforded to these rights depends on the forum in which they take place, and certain content-based restrictions have been upheld by the Supreme Court, particularly in the case of television and radio broadcasting due to the limited number of frequencies available.

Freedom of the press

> "Congress shall make no law...abridging the freedom of speech, or of the press."

This freedom protects the right to gather information and report it to others, and it applies to all forms of newsgathering and reporting, regardless of the medium. While the free press clause originally addressed newspapers, it now covers television, radio, online journalism, and more.

The First Amendment's protection of freedom of the press is considered one of the most important constitutional guarantees. It safeguards the press from government control and establishes its role as a watchdog over government actions, serving the governed rather than the governors. This freedom enables people to criticise public officials, expose government corruption, and distribute material on almost any subject without prior restraint or censorship.

The Supreme Court has interpreted the First Amendment as applying to the entire federal government, not just Congress. Additionally, through the Due Process Clause of the Fourteenth Amendment, the Court has held that the First Amendment's protections extend to shield freedom of the press from interference by state governments as well.

The right to freedom of the press has been tested and clarified through several landmark Supreme Court cases over the years. For example, in *Near v. Minnesota* (1931), the Court rejected the notion of prior restraint on publication, affirming freedom of the press at the state level via the Due Process Clause of the Fourteenth Amendment. In *New York Times Co. v. Sullivan* (1964), the Court held that the press enjoys significant protection when reporting on news of public concern, even if the information is erroneous.

While freedom of the press is a cornerstone of American democracy, it is not absolute. For instance, individuals can be prosecuted for publishing obscene or libelous material, or for illegally obtaining information. Additionally, the press does not have the power to compel the government to furnish information and is generally subject to the same laws as the public. However, the Supreme Court has recognised that the press plays a critical role in American society and is entitled to deference due to its newsworthy role.

Right to assemble

The right to assemble is a fundamental aspect of the First Amendment, guaranteeing the freedom to gather and collectively express, promote, and defend ideas. This right is closely linked to freedom of speech and has been central to many pivotal moments in American history, from civil rights sit-ins to Black Lives Matter protests. While it is a broad right that covers even casual social gatherings, it is perhaps most crucial in the context of political protests and demonstrations.

The First Amendment states that Congress cannot make any law that infringes on "the right of the people peaceably to assemble". This right to peaceably assemble is not absolute, and there are certain narrow restrictions that can be imposed by police and government officials. For example, law enforcement may break up any gathering that turns violent or poses an immediate threat to public safety, such as blocking traffic on freeways or bridges. However, protests that merely slow traffic or inconvenience pedestrians are generally protected, as seen in the case of Edwards v. South Carolina.

The Supreme Court has also clarified that the right to assemble extends beyond simply gathering to the ability to march and parade. In the case of Hague v. C.I.O., the Court ruled that peaceful demonstrators could not be prosecuted for "disorderly conduct" when marching on streets and sidewalks, securing these spaces as public forums for assembly.

Restrictions on the right to assemble are generally permitted when they are content-neutral and narrowly tailored to serve legitimate concerns, such as public health and safety. For instance, during the COVID-19 pandemic, emergency orders limiting gathering sizes were largely upheld by lower courts as necessary to protect public health.

The right to assemble is not limited to public spaces; it also applies when individuals are gathered on private property with the owner's consent. However, private property owners can set their own rules for speech and assembly on their premises.

The right to assemble is a cornerstone of a democratic society, allowing citizens to freely associate with one another, express their views, and advocate for causes and beliefs. It empowers individuals to have a collective voice and participate in the political process, as seen in historic movements like the Civil Rights Movement and Women's Suffrage.

Right to petition

The right to petition is a fundamental aspect of the First Amendment, which specifically prohibits Congress from abridging "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". This right ensures that individuals can participate in the democratic process by allowing them to communicate their needs, concerns, and grievances to the government and request governmental action or change.

The right to petition has a long history, dating back to English documents such as the Magna Carta, which implicitly affirmed the right by its acceptance by the monarchy. This right was later formalised in statutes and bills of rights, such as the 14 Edw III Statute 1 Chapter 5 (1340) and the 1689 Bill of Rights, which explicitly declared the right of subjects to petition the king. The right to petition was also a crucial factor in the Declaration of Independence, as the failure of King George to address the grievances listed in colonial petitions was cited as a justification for declaring independence.

In the United States, the right to petition is not limited to demands for "a redress of grievances" but has expanded to include demands for the government to act in the interest and prosperity of the petitioners and to reflect their views on politically contentious matters. This right extends to all departments of the government, including administrative agencies, courts, and legislative bodies. The right to petition also includes the legal right to sue the government and seek redress through litigation or other governmental action.

While the right to petition is often overlooked or taken for granted, it is essential in social justice movements and has played a significant role in advancing civil rights in America. For example, the fight to abolish slavery involved sending Congress over a thousand petitions signed by approximately 130,000 citizens. The right to petition also intersects with the right to freedom of assembly, as individuals can join together to seek change from the government.

However, it is important to note that the right to petition is not absolute. Citizens must be cautious to avoid violating other laws under the guise of petitioning activity. Additionally, the right to petition does not guarantee a desired result, but it ensures that individuals have a platform to express their ideas, hopes, and concerns to their government and elected representatives.

Frequently asked questions