First Amendment Survey

Background Information

The purpose of this research was to conduct a scientific telephone survey of Wisconsin adults' knowledge and opinions of the First Amendment of the U.S. Constitution Bill of Rights. Respondents’ knowledge, civil rights experiences, general opinions and opinions on specific currently debated First Amendment topics were examined in relationship with selected demographics.

This project was sponsored by Dr. Timothy Shiell, Department of English and Philosophy, with funds awarded through a Dahlgren Professorship. Dr. Shiell intends to use the findings to recommend improvements in Wisconsin public school civics curriculum.

Additional budgetary support for the research was provided through the University of Wisconsin-Stout Provost’s Office, Stout Solutions, the College of Human Development, and the Department of Psychology.

 

History of the Bill of Rights up to 1791

“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”

(The First Amendment to the United States Constitution, 1791). The First Amendment was written because American citizens demanded a guarantee of their basic freedoms. Without the First Amendment, religious minorities could be persecuted, the government could establish a national religion, protestors could be silenced, and the press would not be able to speak against the government ( First Amendment Center , 2004).

Many historical events, court cases, and debates led to the First Amendment. In 1634 Puritan minister Roger Williams declared, “Forced worship is false worship.” He felt that the Puritans had not sufficiently distanced themselves from the Church of England. However, these statements did not settle well with the Puritans of Salem.
In 1635, Williams was banished from the Massachusetts Bay colony for his unorthodox beliefs. He fled to the south in the area that later became the colony of Rhode Island. He then secured a Royal Charter, which insisted that all citizens have a complete separation of church and state. Religious freedom became the keystone of this new colony.

In 1641 the Massachusetts General Court documented the right to petition and included a statement about due process. Twenty-two years later, in 1663, Rhode Island granted religious freedom. In 1708 Connecticut passed the first statute and allowed “full liberty of worship” to Anglicans and Baptists. In 1776 Virginia’s House of Burgesses passed the Virginia Declaration of Rights. This was the first bill to be included in a state constitution of America. One year later in 1777, Thomas Jefferson completed the first draft of a Virginia state bill for religious freedom, which stated that no man would be forced to frequent or support any religious worship or place.

The United States Constitution was signed September 18, 1787. After much debate, the Bill of Rights was added and went into effect December 15, 1791 when it was ratified by the state of Virginia (The Bill of Rights and Beyond, 1991). The First Amendment is only expressly applicable to Congress but has been interpreted by the Supreme Court as applying to the entire Federal Government. The Supreme Court interprets the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state government (LII, 2004).

History of the Bill of Rights since 1791

For the first 126 years the First Amendment attracted little attention. However, between 1798 and 1801 the Federalists did enact the Alien and Sedition Acts that outlawed speech criticizing the government. Historically, the First Amendment has been challenged during war and other times of crisis, due to the failure to protect free speech (Ostrowski, 1995). Currently, First Amendment controversies and constitutional clashes are wrestled daily within the courts ( First Amendment Center, 2002).

The courts hear cases attempting to amend the Constitution as well as litigation hearings. According to Article V, it is very difficult to amend the U.S. Constitution. There are two ways in which this can be done, the first of which is the only method used presently. The first method calls for a two-thirds vote by both the House of Representatives and the Senate followed by ratification by a three-fourths vote by State Legislatures. Today this would mean that thirty-eight states are required to ratify an amendment. The second method states that the Constitution may be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention’s proposed amendments are later ratified by three-fourths of State Legislatures (UMKC, 2004). Due to the fact that it is so difficult to make changes, the Supreme Court’s interpretations of the U.S. Constitution are very important. The only time ratification is likely to occur is when there is intense public disagreement that is close to unanimous. The protection of flag burning may be an unpopular recent court decision but it is likely to stand unless the entire court changes its collective mind. Since 1787 only twenty-seven amendments have been made to the U.S. Constitution, ten of which came immediately as The Bill of Rights was added in 1791.

The other seventeen amendments to the Constitution are historical landmarks just as was the Bill of Rights. These amendments impact our government, work lives, and personal lives. The following are four examples of amendments to the Constitution that passed and their significance. The Thirteenth, Fourteenth, and Fifteenth Amendments, also known as the “Civil War Amendments” to the U.S. Constitution, addressed the abolishment of slavery, the idea that involuntary servitude is unconstitutional, and that the right of United States citizens to vote may not be denied by any state on account of race, color, or previous condition of servitude (Bill of Rights and Beyond, 1991). Thus, in a country where “liberty and justice for all” had been denied, slavery was abolished and former slaves were allowed to participate as citizens.

Although the Fifteenth Amendment stated that the right to vote would not be denied on account of race, color, or previous condition of servitude, it did not mention anything about sex. Carrie Chapman Catt, president of the National American Woman Suffrage Association started a “Winning Plan.” This campaign, begun in colonial times, resulted in the Nineteenth Amendment to the U.S. Constitution granting women the right to vote. The Nineteenth Amendment was ratified on August 18, 1920 just two years after Catt introduced “Winning Plan.” This amendment, by granting women a voice in government, affected half of the population of voting age (Bill of Rights and Beyond, 1991).

As these examples of Constitutional Amendments demonstrate, the process of amending the Constitution is long and difficult, but because of the determined efforts of citizens who have been willing to protest, debate, and remain true to their beliefs, the United States has the freedoms it does today.

Freedom of Speech

“Congress shall make no law… abridging the freedom of speech….” (The Bill of Rights, 1791)

Freedom of speech is an overarching concept that incorporates all elements of the First Amendment. As Justice Brandeis wrote in Whitney v. California (1927) “Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

If one were to ban books in a school library, it could be seen as an issue of free speech; however, if you ban the Bible in a school library, is it an issue of free speech, religious freedom, or freedom of the press? Indeed, in all of the court decisions dealing with free speech, there will be other elements of the First Amendment present. “With some qualifications, therefore, it is submitted that the speech and press clauses may be analyzed under an umbrella ‘expression’ standard, with little, if any, hazard of missing significant doctrinal differences” (FindLaw, 2004).

Following is a brief discussion of notable First Amendment court cases dealing with the issue of free speech, which encompasses not only the spoken word, but also printed materials and the diverse topics of obscenity and flag burning.

Schenck v. United States (1919) established the idea of “a clear and present danger test” to determine the validity of free speech. Justice Oliver Wendell Holmes wrote in this landmark decision that, “The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree.” This is what forbids a person to falsely shout “FIRE!” in a crowded building. In 1969, this issue concerning speech and the safety of others was clarified to forbid speech that was likely to incite or produce imminent lawless action – for example, to incite to riot ( ALA, 2004).

With the issue of safety also comes the issue of personal harm. Although lawsuits against the tabloid magazines continue, it was ruled in 1964 that “no public official” could recover damages for false statements made about them unless it could be proven that the statement was made “with actual malice” – knowledge that the statement was false, or made with “reckless disregard” for whether it was false or not (ALA, 2004).

Recent occurrences on television and radio have reopened the debate on what obscenity really is. It is not surprising that the Court has had similar difficulty with defining obscenity. Roth v. United States (1957) first determined that all speech was not protected by the First Amendment, and, indeed, was never intended to be, according to the Court. Justice Brennan coined the phrase “prurient interest” in defining obscenity. Prurient interest is amorbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex. Consequently, there are acceptable levels and unacceptable levels of obscenity. In 1973, this idea was taken further in Miller v. California, which retained the idea of prurient interest, but included the qualifiers of “serious literary, artistic, political or scientific value” in determining what was and what was not obscene. Finally, in 1982, New York v. Ferber made the distinction between the act being portrayed and the ages of the people involved, and child pornography was removed from First Amendment protection ( ALA, 2004).

Although first used as a political act during the 1970’s as a protest to the U.S. involvement in the Vietnam War, flag-burning was not addressed by the Supreme Court until 1989, when the Court upheld flag-burning as a protected form of symbolic political speech. The following year, the Supreme Court struck down a federal statute designed to allow the U.S. Government to punish flag-burners. ( ALA, 2004). This is an issue that confuses many Americans. Most Americans, when asked, believe that it is illegal to burn or otherwise deface the U.S. flag. At the same time, there continue to be efforts in the U.S. Congress to pass the “flag protection amendment” as it is now known. These efforts are due in part because some people are angry due to the symbolic meaning of flag burning. For some it is a matter of personal harm, as is “hate speech.”

Following the general idea of disallowing speech meant to incite, the city of St. Paul, MN, attempted to make “Hate Speech” illegal, banning speech that “might anger or alarm others on the basis of race, color, religion, or gender.” The ordinance was struck down as unconstitutional, as it discriminated based on the content of expression ( ALA, 2004). The Supreme Court, in the same vein, overturned a lower court decision that denied the Ku Klux Klan their right to participate in the Adopt-A-Highway program, due to the “hateful nature” of their organization. Cuffley v. Mickes (1999) made it illegal to discriminate against a group of people due solely to their political and social views (About.com, 2004). Even though some people disagree with “hate speech” and have strong opinions regarding certain groups’ ideas and views, people have the constitutional right to voice their opinion publicly.

In conclusion, the landmark cases discussed demonstrate how many different issues fall under the right to free speech. Many Americans take their right to free speech very seriously and will go to great lengths to preserve that freedom. Although some forms of free speech may offend certain groups or individuals, upholding those rights is our responsibility. Perhaps the best way to sum up the idea of free speech is in the famous quote by Francois M. Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.” We cannot only support speech with which we concur. Censorship of any of us is censorship of all of us.

Freedom of the Press

“Congress shall make no law… abridging freedom of the press….” (The Bill of Rights, 1791)

Even though protected by the U.S. Constitution, many individuals including the courts have often asked, “Who is the press?” (Lee, 2004) According to the 2 nd U.S. Circuit Court of Appeals, freedom of the press extends to every sort of publication that affords a vehicle of information (Lee, 2004). This includes “mainstream media,” for instance broadcast stations, magazines, newspapers, free-lance writers, pamphleteers, and underground newspapers. Within freedom of the press there are five specific topic areas that are protected by a court of law. These areas include libel & defamation, prior restraint, broadcasting, shield laws, and gag orders.

The first issue defended by freedom of the press deals with libel and defamation rights. Libel and defamation refers to false statements of fact that harm another’s reputation. This is important to freedom of the press because it allows writers to speak about controversial subjects. However, in 1798 Congress passed the Sedition Act, which was designed to silence political opposition. The Sedition Act prohibited publishing of any false, scandalous and malicious writing or writings against the government, with intent to defame or to bring them into contempt. The act was repealed in 1801. “If the press could be punished for every error, a chilling effect would freeze publications on any controversial subject” (Lee, 2004).

The second category of protections defended by freedom of the press deals with prior restraint. Prior restraint ensures that no restraint is forced on an individual before an action occurs, and that individuals may be punished only after the action occurs. Prior restraint was first challenged in 1931 when the U.S. Supreme Court heard the case of Near v. State of Minnesota. A publisher of a small Minneapolis newspaper who had published several articles claiming that law enforcement officials were turning a blind eye toward local organized crime brought the appeal. The county attorney sought to prohibit further publication of the newspaper, citing a state statute that outlawed “malicious, scandalous and defamatory” periodicals. Under the First Amendment, the court said, publication of information, no matter how scandalous, can be prevented only in “exceptional cases,” such as to protect the recruiting or transporting of troops in a time of war or to prevent the distribution of obscenity (Lee, 2004; FindLaw, 2004). This ruling showed that “mainstream media” could publish any information without being prosecuted.

Thirdly, freedom of the press helps to protect broadcasting rights. The only significant instances in which broadcasting rights have been challenged have dealt with “personal attack” and “political editorializing rules.” “Personal attack” required that individuals be notified if they were going to be attacked on air, so they could refute this attack. “Political editorializing rules” ruled that stations that endorsed a candidate for office were required to give the candidate’s opponents free rebuttal time (Lee, 2004). However, in October 2000, the U.S. Circuit Court of Appeals for the District of Columbia decided that these rules were unconstitutional.

Fourth, freedom of the press helps to protect news gatherers by offering shield laws. These laws state that news gatherers will be protected from those who subpoena for a variety of reasons. News gatherers are often subpoenaed to provide information in criminal and civil court proceedings, to identify a confidential source, or to seek reporter’s notes, video outtakes, and other unpublished information. However, in Baker v. F & F Investments, the U.S. Circuit Court of Appeals noted that convincing a news gatherer to reveal confidential sources “unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis” (Lee, 2004). The court also decided that such disclosure would likely have a deterrent effect on future “undercover” investigating reports. Thus, this would threaten freedom of the press and the public’s need to be informed, and undermine values, which traditionally have been protected by federal courts applying federal public policy (Lee, 2004). In some instances reporters may have to disseminate information and waive their shield laws. This can only happen if the material is highly relevant to the case, a compelling need exists for the information, or the information cannot be obtained by other means. An example of a shield law is the rape shield law, which according to The Detroit Free Press is “intended to limit testimony about an accuser's sexual and psychological history.” Nevertheless, jurors may be given historical records of patient hospitalization, overdose, and other information.

Finally, freedom of the press deals with gag orders and how they can affect the media. Gag orders were formed to prohibit participants (parties, lawyers, law enforcement officials, and witnesses) in a case from talking to news media (Lee 2004). These orders can actually infringe on an individual’s First Amendment rights, but courts claim they are essential to preserve parties’ rights to a fair trial. In the current Kobe Bryant case, there is concern about pretrial news coverage because media involvement is likely to affect the outcome of the case. Such media involvement causes a concern for whether the trial is actually fair. In many cases, courts are divided on this issue; however, recent trends have allowed for trial judges to prohibit news interviews with jurors or inquire about juror comments or votes.

Freedom of the press is a law that protects the interests of the media. Many writers are allowed to publish certain material under the provision that the U.S. Constitution protects their action. Such areas protected under freedom of the press include libel & defamation, prior restraint, broadcasting, shield laws, and gag orders. Censorship or prior approval of the press during times of war continues to be debated.

Freedom of Religion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” (The Bill of Rights, 1791).

The First Amendment in the United States Constitution’s Bill of Rights begins with the specification of the freedom of religion, by explicitly stating that Congress shall make no laws establishing a religion or preventing the exercise of religion. These statements are known as the Establishment Clause and the Free Exercise Clause. The Establishment Clause dictates that government cannot authorize a church, pass laws favoring a church or force religion on any person. The Free Exercise Clause mandates that people are free to believe whatever they wish, however general laws may restrict certain religious practices. Laws directed towards religions are deemed unconstitutional; government and laws must remain neutral toward religion.

There have been numerous legal challenges to the religious freedom guaranteed by the First Amendment. First Amendment Cyber-Tribune (FACT, 2002) separates the court cases under the two clauses. Falling under the Establishment Clause are religion in public schools, religion in state colleges or universities, support for religious schools, religious tests to hold public office, prayer in legislatures, and nativity displays. Under the Free Exercise Clause are protected beliefs, religion in the workplace, door-to-door proselytizing, proselytizing in other venues, and when religious acts break the law.

Challenges to the Establishment Clause

Regarding religion in state colleges and universities, courts have ruled in favor of equal access and equal funding of religious organizations relative to other extracurricular groups ( Widmar v. Vincent, 1981 ; Rosenberger v. Rector and Visitors of the University of Virginia, 1995).

Rulings pertaining to religious schooling have addressed issues regarding the separation of church and state. In 1973, two court cases, Committee v. Nyquist , and Sloan v. Lemonruled that states could not reimburse parents for religious school expenses. Mueller v. Allendecided that taxpayers could deduct specific private and religious school expenses (1983).

Textbook lending to religious schools has been deemed constitutional ( Board of Education v. Allen, 1968; Meek v. Pittenger, 1975). Zelman v. Simmons-Harris (2002) was the first time courts ruled in favor of a voucher program; parents were granted tax dollars to send their children to religious or non-religious schools.

Religious tests to hold public office have been overturned and ministers are allowed to hold public office ( McDaniel v. Paty, 1978). Marsh v. Chambers found prayer in legislatures constitutional in 1983.

Courts have ruled that government agencies may own nativity scenes for display on private property ( Lynch v. Donnelly, 1984). Nativity scenes displayed in government buildings violate the Establishment Clause ( Allegheny County v. ACLU, 1989).

Challenges to the Free Exercise Clause

Regarding protected beliefs, court findings leave church doctrine and religious matters in the hands of the church rather than the civil courts ( Watson v. Jones, 1872). In Presbyterian Church v. Hull Church(1969) and Jones v. Wolf(1979) courts ruled that church property disputes are beyond the jurisdiction of the civil courts.

The court cases Employment Division v. Smith (1990) and Sherbert v. Verner (1963) both entailed the compelling interest test. The compelling interest test is simply a question of whether or not the government has a significant reason to burden the religious practices of an individual. Court decisions forced the government to acknowledge the unique requirements of religious practices. Recognition does not endorse any particular religion or doctrine; therefore the government can reasonably accommodate people's religious beliefs when no compelling interest exists.

Court cases involving religious door-to-door proselytizing have ruled that imposing ordinances requiring fees, registration, or permits to be a violation of religious liberty ( Murdock v. Pennsylvania, 1943; Watchtower Bible & Tract Society of New York v. Village of Stratton, 2002). Martin v. Struthers(1943) ruled that door-to-door selling of religious material could not be banned.

Court cases involving proselytizing in other venues have ruled it is constitutional for spiritual groups to distribute literature and speak religiously in public forums ( Marsh v. Alabama, 1946; Fowler v. Rhode Island, 1953). Krishna v. Lee(1992) found that airport managers can prohibit solicitation of money by religious groups, but must allow free distribution of religious literature.

In regard to religious acts that break the law, courts rendered that religious action cannot violate general law ( Reynolds v. United States, 1878; Employment Division v. Smith, 1990). Laws directed towards religion or specific religious practices are unconstitutional ( Church of Lukumi Babalu Aye v. Hialeah, 1993).

Religion in Public Schools

According to FACT (2002), the place of religion in public schools has an extensive legal history. The basic principle behind the rulings has been that public schools and religion must remain separate; public schools cannot endorse any religious perspective. A number of court cases have dealt primarily with religious instruction and school-sanctioned prayer. In 1948 ( McCollum v. Board of Education) courts found religious instruction in public schools to be a violation of the First Amendment. School prayer in various situations has been ruled unconstitutional in many court cases ( Engel v. Vitale, 1962; Wallace v. Jaffree, 1985; Lee v. Weisman, 1992; Santa Fe Independent School District v. Doe, 2000). These rulings have a negative impact on the possibility of designated time for prayer in the public school setting.

A number of court cases have addressed the use of public school property. Courts have ruled that religious groups are guaranteed the same access rights as other groups ( Lamb’s Chapel et al. v. Center Moriches union Free School District, 1993; Good News Club v. Milford Central School, 2001; Board of Education v. Mergens, 1990).

There has been recent controversy regarding the phrase, “under God,” within the Pledge of Allegiance. A Baptist minister, Francis Bellamy wrote the original Pledge in 1892 and in 1954 Congress added the words, “under God,” to the Pledge after a campaign by a religious group; thus making the Pledge both a patriotic oath and a public prayer (Baer, 1992). Some people view the statement as a violation of the First Amendment because it disregards the constitution’s position on separation of church and state. The Pledge of Allegiance issue was being debated by the Supreme Court at the time of this investigation.

The Right to Assemble

“Congress shall make no law…abridging…the right of the people… peaceably to assemble….” (The Bill of Rights, 1791).

The right to assemble allows for peaceful gatherings, parades and demonstrations in which one can make their views known. These views may be in support or in opposition to a particular issue. Assembly ensures rights for groups ranging from workers, students, and anti-war demonstrators to Ku Klux Klan members. As long as these views are presented in a peaceful and organized manner, assembly permits them to gather and even picket. An American who used this right to its fullest potential was Dr. Martin Luther King, Jr., who in 1963 gathered 250,000 people for a march on Washington, where he gave his famous “I have a dream” speech at the height of the American Civil Rights Movement.

In the case De Jonge v. Oregon (1937), the Supreme Court ruled the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be a crime.” In a related case which is at the heart of what the right to assemble stands for is the case of the United States v. Cruikshank (1876). In this case, the Supreme Court said that the “right of the people to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected to the powers and duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.” The right to assemble is further supported in the Supreme Court case Edwards v. South Carolina (1963). This case underlines that simply fearing that an assembly may become disorderly is not a legitimate reason to stop a peaceful social demonstration.

The right to assemble is a crucial part to the First Amendment in that it gives citizens the right to gather with a voice so they may participate in the political process.

The Right to Petition

“Congress shall make no law…abridging…the right of the people…to petition the government for redress of grievances.” (The Bill of Rights, 1791).

The right to petition the government for a redress of grievances is the fifth freedom stated in the First Amendment to the U.S. Constitution. The right to petition states that anyone who is a citizen of the United States of America has the right to petition the government, or disagree with what the government is saying or doing.

The right to petition has a history dating back to 1764. Before the U.S. Constitution was created, when the colonialists were under Great Britain’s rule, a petition was created opposing the Stamp Act because of taxation without representation. The General Congress assembled in July of 1774 and created a petition with grievances against Great Britain. This petition led to the United States declaring independence from Britain in 1776 (The Bill of Rights and Beyond, 1991).

Since the United States has become a free nation there have been several landmark government petitions. The abolition of slavery, women’s voting rights, and collective bargaining have all had their origins through the right to petition. Other examples include saving historical sites, banning companies from existence, opposition to changing where highways or electrical lines run, and election recall. In 2003 the state of California had an election recalling the governor resulting from a petition. Arnold Schwarzenegger was then elected Governor (cnn.com).

Petitions can take place at the federal, state, county or local level. Members of the governing population, the citizens, have the power in each level of government to create and sign a petition. Citizens of the United States have the right to disagree with what the government is doing. Whether the governing body is making new policies, electing officials one might not agree with, or reconsidering legislation, creating and/or signing a petition can make a difference.

he First Amendment to the U.S. Constitution describes the freedoms of expression that are integral to living in a free and democratic society.