The First Amendment to the U.S. Constitution reads:
“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 applies only to the government (federal, state, and local). It does not, for example, prevent private persons or companies from restricting your speech (although various federal or state laws might.) This is called the “state action” doctrine. And although the First Amendment says “Congress,” it generally applies equally to all three branches of government.
First Amendment law is divided into several categories based on the clause in the amendment. The three most common categories of First Amendment law are:
- The Free Speech Clause
- The Free Exercise Clause
- The Establishment Clause
The Free Speech Clause protects more than just ‘speech.’ It covers a variety of forms of expression such as speaking, books, pamphlets, movies, video games, and certain online activities (such as blogging). There are some categories of unprotected speech, including defamation, obscenity, threats, and “fighting words.” The scope of free-speech rights depends on the circumstances (who, what, where, when, etc.). For example, children at school, inmates in prison, and government employees at work do not have the same free-speech rights as ordinary citizens in a public park; and commercial speech gets less protection than private speech. Sometimes the First Amendment prohibits the government from regulating the content of the speech, and the First Amendment almost never permits the government to regulate the viewpoint of the speech.
The Free Exercise Clause protects the freedom of religion. But it generally applies only to beliefs—not conduct. The First Amendment does not excuse, for religious reasons, violating a neutral law of general applicability. Thus, the Free Exercise Clause really only comes into play if the government intentionally targets religion for disfavored treatment. (Many states and the federal government, however, have enacted laws that afford protection for religious practices.)
The Establishment Clause is the basis for the principle of the separation of church and state, and the law here can sometime be a bit vague and amorphous. For example, one way courts evaluate the government’s action is by asking whether it leads to “excessive government entanglement” with religion. Establishment Clause cases have involved tax breaks for churches, religious displays on government property, school prayer, vouchers for religious schools, prayer to begin town hall meetings, and scholarships for soon-to-be religious leaders.
Not just anybody can sue in federal court. A plaintiff has to have what’s called “standing” to sue–the plaintiff has to show that the law or government action is causing or will cause the individual specific, concrete harm. The issue of standing comes up often in First Amendment cases.
Also, even if one’s First Amendment rights are violated, government officials can have what’s called “qualified immunity,” meaning that the government can still win the lawsuit if the rights that were violated were not “clearly established” at the time.
Nothing in this blog constitutes legal advice or should be construed as creating an attorney-client relationship. For First Amendment legal advice, contact a First Amendment lawyer near you.
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