The First Amendment to the U.S. Constitution reads as follow:
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.
Corresponding sections of the New York Constitution read as follows:
§3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind;
§8. Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
§9. 1. No law shall be passed abridging the rights of the people peaceably to assemble and to petition the government, or any department thereof;
The words seem simple enough, but they may be the basis for more debate than any other words in the documents in which they appear. First Amendment rights are continuously being studied, tested, defined and re-defined. While thorough discussion of these rights is the subject of numerous college courses and texts and is beyond the scope of this review, it is important to spend some time considering the impact of First Amendment cases on everyday lives.
Freedom of Speech
Freedom of speech is considered a fundamental American right, but pure, unrestricted freedom of speech is not guaranteed by our Constitution. Pure free speech would allow anyone to say anything to anyone anywhere at any time. Obviously, if everyone in a society was exercising personal free speech in such a way, it would be chaos. For that reason, there are limits on free speech. The extent of free speech restriction often is the source of controversy and argument, as shown by the legions of cases regarding those restrictions.
Generally speaking, Americans are free to say what they wish unless their speech constitutes imminent and substantial harm, or put another way, clear and present danger. Those standards have been followed most recently by courts seeking to determine when speech should be allowed, and when it needs to be restricted. The cases that follow are examples of both historic and more contemporary questions of free speech, at the federal level as well as the NY Court of Appeals.
Texas v. Johnson, 491 U.S. 397(1989); Morse v. Frederick, 551 US 393 (2007); Snyder v. Phelps, 562 U.S. 443 (2011).
Freedom of Religion
The constitutional freedom of religion actually comes in two forms: freedom to exercise, or practice religion and freedom from a government-sponsored establishment of religion; that is, freedom from being forced to adhere to a religion chosen by the government. Two cases are included to illustrate how the claim of these related but different religious rights may end up litigated in court.
Town of Greece v. Galloway, 572 U.S. ___ (2014); Wisconsin v. Yoder, 406 U.S. 205 (1972)
The clash between the two forms of religious freedom contained within the First Amendment is reviewed in a case regarding a high school coach’s on-field prayer in Kennedy v. Bremerton School District, 597 U.S. _____ (2022). In that case, the Court held that a high school football coach who prayed after games was fired wrongfully when he refused to stop the practice. The school district argued that the on-field prayer by a school district (government) employee who was in a leadership position violated the constitutional restriction against government (school district) promoting any specific religion – what is known as the Establishment Clause. The Court ruled in favor of the coach by citing both his freedom to exercise religion and his freedom of speech, each of which is protected under the First Amendment.
Freedom of Assembly
Another fundamental but not unlimited right in American society is the ability to assemble in protest. This topic was also considered in the Westboro Baptist Church case, Snyder v. Phelps, a summary of which appears after this chapter. In general, citizens have the right to assemble, but that may be lawfully restricted by regulation of reasonable time, place and manner. Read on for a United State Supreme Court case about a protest in front of, ironically, the United States Supreme Court building.
United States v. Grace, 461 U.S. 171 (1983)
