View source for First Amendment to the United States Constitution

{{short description|1791 amendment limiting government restriction of civil liberties}}
{{redirect|First Amendment|the first amendments to other constitutions}}
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{{Use American English|date=January 2019}}
{{Use mdy dates|date=May 2021}}
{{US Constitution article series}}

The '''First Amendment''' ('''Amendment I''') to the [[United States Constitution]] prevents [[Federal government of the United States|Congress]] from making laws respecting an [[Establishment Clause|establishment of religion]]; prohibiting the [[Free Exercise Clause|free exercise of religion]]; or abridging the [[Freedom of speech in the United States|freedom of speech]], the [[Freedom of the press in the United States|freedom of the press]], the [[freedom of assembly]], or the [[Right to petition in the United States|right to petition]] the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the [[United States Bill of Rights|Bill of Rights]]. In the original draft of the Bill of Rights, what is now the First Amendment occupied third place. The first two articles were not ratified by the states, so the article on disestablishment and free speech ended up being first.<ref>{{cite web |title=America's Founding Documents – The Bill of Rights: A Transcription |url=https://www.archives.gov/founding-docs/bill-of-rights-transcript#:~:text=On%20September%2025%2C%201789%2C%20the,Article%201%20was%20never%20ratified |website=archives.gov |date=November 4, 2015 |publisher=[[National Archives and Records Administration]] |access-date=October 2, 2024 |archive-url=https://archive.today/20241002094533/https://www.archives.gov/founding-docs/bill-of-rights-transcript |archive-date=October 2, 2024}}</ref><ref>{{cite web |last=Kratz |first=Jessie |date=2020-01-23 |title=Unratified Amendments |url=https://prologue.blogs.archives.gov/2020/01/23/unratified-amendments/ |access-date=2024-10-03 |website=Pieces of History |language=en-US |archive-date=September 27, 2024 |archive-url=https://web.archive.org/web/20240927202126/https://prologue.blogs.archives.gov/2020/01/23/unratified-amendments/ |url-status=live}}</ref>

The Bill of Rights was proposed to assuage [[Anti-Federalism|Anti-Federalist]] opposition to [[History of the United States Constitution#Ratification of the Constitution|Constitutional ratification]]. Initially, the First Amendment applied only to laws enacted by the [[United States Congress|Congress]], and many of its provisions were interpreted more narrowly than they are today. Beginning with ''[[Gitlow v. New York]]'' (1925), the [[Supreme Court of the United States|Supreme Court]] applied the First Amendment to states—a process known as [[Incorporation of the Bill of Rights#Amendment I|incorporation]]—through the [[Fourteenth Amendment to the United States Constitution#Due Process Clause|Due Process Clause of the Fourteenth Amendment]]. The First Amendment applies only to [[State action|state actors]].{{efn|See for the topic First Amendment and state actor exemplarily the 2019 United States Supreme Court case ''[[Manhattan Community Access Corp. v. Halleck]]'', No. 17-1702, 587 U.S. ___ (2019).}}<ref>{{cite web |last=Lecher |first=Colin |date=June 17, 2019 |title=First Amendment constraints don't apply to private platforms, Supreme Court affirms |url=https://www.theverge.com/2019/6/17/18682099/supreme-court-ruling-first-amendment-social-media-public-forum |archive-url=https://archive.today/20230719183906/https://www.theverge.com/2019/6/17/18682099/supreme-court-ruling-first-amendment-social-media-public-forum |archive-date=July 19, 2023 |access-date=June 18, 2019 |website=The Verge}}</ref>

With regard to religious freedom, the Court has frequently cited [[Thomas Jefferson]]'s call for "a wall of [[Separation of church and state|separation between church and State]]", a metaphor for the separation of religions from government and vice versa as well as the free exercise of religious beliefs that many Founders favored. Speech rights were expanded significantly in a series of 20th- and 21st-century court decisions which protected various forms of political speech, [[Anonymity#United States|anonymous speech]], [[campaign finance]], [[Pornography in the United States|pornography]], and [[Freedom of speech in schools in the United States|school speech]]; these rulings also defined a series of [[United States free speech exceptions|exceptions to First Amendment protections]].

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In ''[[Near v. Minnesota]]'' (1931) and ''[[New York Times Co. v. United States]]'' (1971), the Supreme Court ruled that the First Amendment protected against [[prior restraint]]—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects [[freedom of association]].

==Text==
{{blockquote|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.<ref>{{cite web|url=https://www.law.cornell.edu/constitution/first_amendment|title=First Amendment|publisher=Cornell University Law School Legal Information Institute|access-date=May 3, 2013|archive-date=May 1, 2013|archive-url=https://web.archive.org/web/20130501072645/http://www.law.cornell.edu/constitution/first_amendment|url-status=live|df=mdy}}</ref>}}
{{wide image|Amendment_1.jpg|1999px|The hand-written copy of the proposed articles of amendment passed by Congress in 1789, cropped to show just the text in the third article that would later be ratified as the First Amendment}}

==Background==
{{further|Anti-Federalism}}
[[File:George Mason.jpg|alt=George Mason|thumb|[[George Mason]] was the principal author of the [[Virginia Declaration of Rights]], adopted by the [[Fifth Virginia Convention]] on June 12, 1776.]]
The right to petition for redress of grievances was a principle included in the 1215 [[Magna Carta]], as well as the [[Bill of Rights 1689|1689 English Bill of Rights]]. In 1776, the second year of the [[American Revolutionary War]], the [[Virginia General Assembly|Virginia colonial legislature]] passed a [[Virginia Declaration of Rights|Declaration of Rights]] that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other twelve states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.{{sfn|Lewis|2007|pp=6–7}}

After several years of comparatively weak government under the [[Articles of Confederation]], a [[Constitutional Convention (United States)|Constitutional Convention]] in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. [[George Mason]], a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing [[civil liberties]]. Other delegates—including future Bill of Rights drafter [[James Madison]]—disagreed, arguing that existing state guarantees of civil liberties were sufficient and any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.{{sfn|Beeman|2009|pp=341–43}}[[File:James Madison.jpg|thumb|[[James Madison]] drafted of the [[United States Bill of Rights|Bill of Rights]].]]For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the [[1st United States Congress]], following the state legislatures' request, James Madison proposed twenty constitutional amendments, and his proposed draft of the First Amendment read as follows:
<blockquote>The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.<ref>Haynes, Charles, et al. ''The First Amendment in Schools: A Guide from the First Amendment Center'', [https://books.google.com/books?id=tFPtl17Xx5kC&pg=PA13 p. 13] (Association for Supervision and Curriculum Development, 2003). Madison also proposed a similar limitation upon the states, which was completely rejected: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Madison, James. [http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html "House of Representatives, Amendments to the Constitution"] (June 8, 1789) via ''The Founders' Constitution''.</ref></blockquote>

This language was greatly condensed by Congress, and passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent.{{sfn|Jasper|1999|p=2}}{{sfn|Lewis|2007|p=10}} Congress approved and submitted to the states for their ratification twelve articles of amendment on September 25, 1789. The revised text of the third article became the First Amendment, because the last ten articles of the submitted 12 articles were ratified by the requisite number of states on December 15, 1791, and are now known collectively as the [[United States Bill of Rights|Bill of Rights]].<ref>{{cite web |url=https://www.archives.gov/exhibits/charters/bill_of_rights.html |title=Bill of Rights |publisher=National Archives |access-date=April 4, 2013 |archive-date=April 4, 2013 |archive-url=https://web.archive.org/web/20130404123122/http://www.archives.gov/exhibits/charters/bill_of_rights.html |url-status=live}}</ref><ref>{{cite web |url=http://www.americaslibrary.gov/jb/nation/jb_nation_bofright_1.html |title=The New United States of America Adopted the Bill of Rights: December 15, 1791 |publisher=Library of Congress |access-date=April 4, 2013 |archive-date=December 25, 2012 |archive-url=https://web.archive.org/web/20121225223835/http://www.americaslibrary.gov/jb/nation/jb_nation_bofright_1.html |url-status=live}}</ref>

==Freedom of religion==
{{main|Freedom of religion in the United States|Religion in the United States}}
[[File:Large Broadside on the Maryland Toleration Act.jpg|thumb|300px|The [[Maryland Toleration Act]] secured religious liberty in the English [[colony of Maryland]]. Similar laws were passed in the [[Rhode Island and Providence Plantations]], [[Connecticut]] and [[Pennsylvania]]. These laws stood in direct contrast with the [[Puritan]] theocratic rule in the [[Plymouth Colony|Plymouth]] and [[Massachusetts Bay Colony|Massachusetts Bay]] colonies.<ref>{{cite web |title=American History: Massachusetts Bay Colony |url=https://www.britannica.com/place/Massachusetts-Bay-Colony |publisher=Encyclopaedia Britannica |access-date=December 15, 2020 |archive-url=https://web.archive.org/web/20201204114232/https://www.britannica.com/place/Massachusetts-Bay-Colony |archive-date=December 4, 2020}}</ref>]]
Religious liberty, also known as freedom of religion, is "the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth."<ref name="20191101FarrReligousFreedom">{{Cite web |last=Farr |first=Thomas |date=November 1, 2019 |title=What in the World is Religious Freedom? |url=https://www.religiousfreedominstitute.org/blog/what-in-the-world-is-religious-freedom |url-status=live |archive-url=https://web.archive.org/web/20200514061105/https://www.religiousfreedominstitute.org/blog/what-in-the-world-is-religious-freedom |archive-date=May 14, 2020 |website=Religious Freedom Institute}}</ref> The acknowledgement of religious freedom as the first right protected in the [[United States Bill of Rights|Bill of Rights]] points toward the American founders' understanding of the importance of religion to human, social, and political flourishing.<ref name="20191101FarrReligousFreedom" /> [[Freedom of religion]]<ref name="20191101FarrReligousFreedom" /> is protected by the First Amendment through its [[Establishment Clause]] and [[Free Exercise Clause]], which together form the religious liberty clauses of the First Amendment.<ref name="20021226ReligiousFreedomEducationProject">{{cite web|author1=Director Religious Freedom Education Project Charles C. Haynes |title=History of Religious Liberty in America. Written for ''Civitas: A Framework for Civic Education'' (1991) by the Council for the Advancement of Citizenship and the Center for Civic Education.|url=https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/religious-liberty-in-america-overview/history-of-religious-liberty-in-america/|access-date=May 25, 2020|archive-url=https://web.archive.org/web/20200525035716/https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/religious-liberty-in-america-overview/history-of-religious-liberty-in-america/|archive-date=May 25, 2020|date=December 26, 2002}}</ref> 

The first clause prohibits any governmental "establishment of religion" and the second prohibits any governmental interference with "the free exercise thereof."<ref name=":4">{{cite web |date=June 27, 2005 |title=McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005), at Part IV |url=https://supreme.justia.com/cases/federal/us/545/844/ |access-date=November 8, 2020 |publisher=Justia US Supreme Court Center}}</ref> These clauses of the First Amendment encompass "the two big arenas of religion in [[constitutional law]]. Establishment cases deal with the Constitution's ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans' rights to practice their faith."<ref name="20201103WashingtonPostFulton v. Philadelphia">{{cite news |author1=Michelle Boorstein |date=November 3, 2020 |title=Religion: Religious conservatives hopeful new Supreme Court majority will redefine religious liberty precedents |url=https://www.washingtonpost.com/religion/2020/11/03/supreme-court-religious-liberty-fulton-catholic-philadelphia-amy-coney-barrettt/ |url-status=dead |archive-url=https://web.archive.org/web/20201105125111/https://www.washingtonpost.com/religion/2020/11/03/supreme-court-religious-liberty-fulton-catholic-philadelphia-amy-coney-barrettt/ |archive-date=November 5, 2020 |access-date=November 10, 2020 |newspaper=The Washington Post}}</ref> Both clauses sometimes compete with each other. The Supreme Court in ''[[McCreary County v. American Civil Liberties Union]]'' (2005) clarified this by the following example: When the government spends money on the clergy, then it looks like establishing religion, but if the government cannot pay for [[military chaplains]], then many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.<ref name=":4" /> The Supreme Court developed the preferred position doctrine.<ref>{{cite web |author=Richard L. Pacelle Jr. |title=Preferred Position Doctrine |url=https://firstamendment.mtsu.edu/article/preferred-position-doctrine/ |publisher=Free Speech Center at Middle Tennessee State University |date=September 19, 2023|access-date=February 2, 2024 |archive-url=https://web.archive.org/web/20240202102119/https://firstamendment.mtsu.edu/article/preferred-position-doctrine/ |archive-date=February 2, 2024}}</ref> In ''[[Murdock v. Pennsylvania]]'' (1943) the Supreme Court stated: "Freedom of press, freedom of speech, freedom of religion are in a preferred position,"<ref name="auto1">{{cite web |title=Murdock v. Pennsylvania, 319 U.S. 105 (1943), at 115 |url=https://supreme.justia.com/cases/federal/us/319/105/ |publisher=Justia US Supreme Court Center |access-date=January 10, 2022 |date=May 3, 1943}}</ref> adding that "[plainly], a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful."<ref name="auto1" />

The First Amendment tolerates neither governmentally established religion nor governmental interference with religion.<ref>{{cite news |title=Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970, at 669 |url=https://supreme.justia.com/cases/federal/us/397/664/ |access-date=July 16, 2023 |work=Justia US Supreme Court Center |publisher=Justia US Supreme Court Center |date=May 4, 1970 |archive-url=https://web.archive.org/web/20230716202512/https://supreme.justia.com/cases/federal/us/397/664/ |archive-date=July 16, 2023}}</ref> One of the central purposes of the First Amendment, the Supreme Court wrote in ''[[Gillette v. United States]]'' (1970), consists "of ensuring governmental neutrality in matters of religion."<ref name="auto">{{cite web|author1=John R. Vile|title=''Gillette v. United States'' (1971)|publisher=The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies|access-date=June 14, 2020|archive-date=June 14, 2020|archive-url=https://web.archive.org/web/20200614171632/https://mtsu.edu/first-amendment/article/234/gillette-v-united-states|url=https://mtsu.edu/first-amendment/article/234/gillette-v-united-states}}</ref> In ''[[Wallace v. Jaffree]]'' regarding silent [[school prayer]], it was maintained that the central liberty that unifies the various clauses in the First Amendment is the individual's [[Freedom of thought|freedom of conscience]].<ref>{{cite web|title=Wallace v. Jaffree, 472 U.S. 38 (1985), at 50.|url=https://supreme.justia.com/cases/federal/us/472/38/|publisher=Justia US Supreme Court Center|access-date=November 8, 2020|date=June 4, 1985}}</ref> In ''[[Ashcroft v. Free Speech Coalition]]'' (2002), the Court stated: First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.<ref>''Free Speech Coalition'', at 253</ref>

===Establishment of religion===

{{See also|Establishment Clause}}

The Establishment Clause forbids federal, state, and local laws whose purpose is "an establishment of religion."<ref>{{cite web |title=Religious liberty in public life: Establishment Clause overview |url=http://www.firstamendmentcenter.org/rel_liberty/establishment/index.aspx |archive-url=https://web.archive.org/web/20100905120418/http://www.firstamendmentcenter.org/rel_liberty/establishment/index.aspx |archive-date=September 5, 2010 |access-date=May 28, 2020 |publisher=First Amendment Center}}</ref> The term "establishment" denoted in general direct aid to the church by the government.<ref>{{cite web |last1=Vile |first1=John R. |title=Established Churches in Early America |url=https://mtsu.edu/first-amendment/article/801/established-churches-in-early-america |url-status=live |archive-url=https://archive.today/20200803125206/https://mtsu.edu/first-amendment/article/801/established-churches-in-early-america |archive-date=August 3, 2020 |access-date=August 3, 2020 |publisher=The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies.}}</ref> In ''[[Larkin v. Grendel's Den, Inc.]]'' (1982), the Supreme Court stated that "the core rationale underlying the Establishment Clause is preventing "a fusion of governmental and religious functions."<ref>{{cite web |date=December 13, 1982 |title=Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) at 126-127 |url=https://supreme.justia.com/cases/federal/us/459/116/ |access-date=January 5, 2022 |publisher=Justia US Supreme Court Center}}</ref> The Establishment Clause acts as a double security, for it both bars religious control over government and political control over religion.<ref name="20021226ReligiousFreedomEducationProject" /> This is reflected in ''[[Reynolds v. United States]]'' (1878), in which the Supreme Court declared that Congress could not legislate over religious opinion except to curtail that which imperils "peace and good order."<ref>[https://supreme.justia.com/cases/federal/us/98/145/ ''Reynolds v. United States'', 98 U.S. 145 (1878)] at 98</ref> 

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification.<ref name="EB">{{cite encyclopedia |title=First Amendment |encyclopedia=Encyclopædia Britannica |url=https://www.britannica.com/EBchecked/topic/208044/First-Amendment/296558/The-establishment-clause |access-date=April 11, 2013 |url-status=live |archive-url=https://web.archive.org/web/20130512163336/https://www.britannica.com/EBchecked/topic/208044/First-Amendment/296558/The-establishment-clause |archive-date=May 12, 2013 |author=Eugene Volokh}}</ref> However, in ''[[Everson v. Board of Education]]'' (1947), the Supreme Court [[Incorporation of the Bill of Rights|incorporated]] the Establishment Clause (i.e., made it apply against the states).<ref>{{Cite web |title=Everson v. Board of Education of Ewing Township (1947) |url=https://constitutioncenter.org/the-constitution/supreme-court-case-library/everson-v-board-of-education-of-ewing-township#:~:text=In%20a%205%2D4%20decision,as%20it%20treated%20secular%20schools. |access-date=September 11, 2025 |website=National Constitution Center}}</ref> The First Amendment's framers knew that intertwining government with religion could lead to bloodshed or oppression, because this happened too often historically. To prevent this dangerous development, they set up the Establishment Clause as a line of demarcation between the functions and operations of the institutions of religion and government in society.<ref name="20200524LincolnUniversityFreedomofReligion">{{cite web |title=Freedom of Religion |url=http://www.lincoln.edu/criminaljustice/hr/Religion.htm |archive-url=https://web.archive.org/web/20200910174427/http://www.lincoln.edu/criminaljustice/hr/Religion.htm |archive-date=September 10, 2020 |access-date=May 28, 2020 |publisher=[[Lincoln University (Pennsylvania)]]}}</ref> At the core of the Establishment Clause lays the principle of denominational neutrality.<ref>{{cite web |author=Elena Kagan |date=February 7, 2019 |title=Jefferson S. Dunn, Commissioner, Alabama Department of Corrections, Applicant v. Domineque Hakim Marcelle Ray on Application Number 18A815 to vacate stay |url=https://www.supremecourt.gov/opinions/18pdf/18a815_3d9g.pdf |archive-url=https://web.archive.org/web/20200806093422/https://www.supremecourt.gov/opinions/18pdf/18a815_3d9g.pdf |archive-date=August 6, 2020 |access-date=August 20, 2020 |publisher=United States Supreme Court}}</ref> The clearest command of the Establishment Clause is, according to the Supreme Court in ''[[Larson v. Valente]]'' (1982) that one religious denomination cannot be officially preferred over another.<ref>{{cite web |date=April 21, 1982 |title=Larson v. Valente, 456 U.S. 228 (1982), at 244 |url=https://supreme.justia.com/cases/federal/us/456/228/ |access-date=August 20, 2020 |publisher=Justia US Supreme Court Center}}</ref> [[File:Thomas Jefferson by Rembrandt Peale, 1800.jpg|thumb|President [[Thomas Jefferson]] wrote in 1802 of a wall of separation."|left]]

While its meaning is not clarified in the Constitution, the Establishment Clause is often understood as mandating the [[separation of church and state]].<ref name=":13" /> The founder of [[Rhode Island]] [[Roger Williams]] coined the metaphor, and [[Thomas Jefferson]] famously used it in an 1802 letter to the [[Baptists in the history of separation of church and state|Danbury Baptists]]:<ref name=":13">{{Cite web |last1=Ryman |first1=Hana M. |last2=Alcorn |first2=J. Mark |date=January 3, 2025 |title=Establishment Clause: Separation of Church and State |url=https://firstamendment.mtsu.edu/article/establishment-clause-separation-of-church-and-state/# |access-date=September 10, 2025 |website=Free Speech Center}}</ref> "[I believe] with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, [and] that the legitimate powers of government reach actions only, and not opinions, ... thus building a wall of separation between Church & State."<ref>{{cite web |title=Jefferson's Letter to the Danbury Baptists—The Final Letter, as Sent on January 1, 1802 |url=https://www.loc.gov/loc/lcib/9806/danpre.html |access-date=February 13, 2014 |publisher=Library of Congress}}</ref> This metaphor was introduced as a judicial doctrine in ''Everson'',<ref name="Accommodationists">{{cite book |author=Shultz |first=David |url=https://books.google.com/books?id=I_f6Oo9H3YsC |title=Encyclopedia of the Supreme Court |publisher=Infobase Publishing |year=2005 |isbn=9780816067398 |location=New York City, New York}}</ref>{{Reference page|page=146}} and to this day, it defines discussion on the Establishment Clause.{{Sfn|Shultz|2005|p=147}} 

The First Amendment's prohibition on an establishment of religion includes many things from prayer in widely varying government settings over financial aid for religious individuals and institutions to comment on religious questions.<ref name=":4" /> However, its precise meaning is heavily debated. The [[National Constitution Center]] observes that, absent some common interpretations by jurists, the precise meaning of the Establishment Clause is unclear and that decisions by the Supreme Court relating to the Establishment Clause often are by 5–4 votes.<ref name="20200415NatConstCentHamiltonMcConnell">{{cite web|author1=Marci A. Hamilton|author2=Michael McConnell|title=Common Interpretation: The Establishment Clause|url=https://constitutioncenter.org/ic-2019/interpretation/amendment-i/interps/264|publisher=[[National Constitution Center]]|access-date=May 12, 2020|archive-url=https://web.archive.org/web/20200415042843/https://constitutioncenter.org/ic-2019/interpretation/amendment-i/interps/264|archive-date=April 15, 2020}}</ref> One such controversial decision was taken in ''Engel v. Vitale'' (1962), which held it unconstitutional for public schools to organize prayer or Bible reading sessions for students, even if on a voluntary basis.<ref name="20200415NatConstCentHamiltonMcConnell" />[[File:The attack on our outer ramparts - first the house of refuge - then the public schools - then - the Constitution! LCCN2011661440.jpg|thumb|An 1885 cartoon from [[Puck (magazine)|''Puck'' magazine]] depicting an army of clergymen assaulting a fortress defended by newspaper editors]]The predominant means by which the Court has enforced the Establishment Clause is the [[Lemon v. Kurtzman#Lemon test|Lemon test]], founded in the case ''[[Lemon v. Kurtzman]]'' (1971).<ref name="Kritzer, H. M 2003">{{cite journal |last1=Kritzer |first1=H. M. |last2=Richards |first2=M. J. |year=2003 |title=Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases |journal=Law & Society Review |volume=37 |issue=4 |pages=830 |doi=10.1046/j.0023-9216.2003.03704005.x}}</ref> It determined whether an action is an establishment if: a) the statute (or practice) lacked a secular purpose; b) its principal or primary effect advanced or inhibited religion; or c) it fostered excessive government entanglement with religion.{{Sfn|Shultz|2005|p=144}} After the Supreme Court ruling in the coach praying case of ''[[Kennedy v. Bremerton School District]]'' (2022), the Lemon Test may have been replaced or complemented with a reference to historical practices and understandings.<ref>{{Cite web |last1=Lupu |first1=Ira |last2=Tuttle |first2=Robert |date=28 June 2022 |title=Kennedy v. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment |url=https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/ |url-status=live |access-date=20 Aug 2022 |website=American Constitution Society|archive-url=https://web.archive.org/web/20221123203023/https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/|archive-date=November 23, 2022}}</ref><ref>{{Cite web |last=Hutchison |first=Harry |date=29 June 2022 |title=The ACLJ Participates in Another Supreme Court Victory as the Court Upholds Coach Kennedy's Right to Pray after Football Games in Kennedy v. Bremerton School District |url=https://aclj.org/religious-liberty/the-aclj-participates-in-another-supreme-court-victory-as-the-court-upholds-coach-kennedys-right-to-pray-after-football-games-in-kennedy-v-bremerton-school-district |url-status=live |access-date=20 Aug 2022 |publisher=American Center for Law and Justice (ACLJ)|archive-url=https://web.archive.org/web/20221123203522/https://aclj.org/religious-liberty/the-aclj-participates-in-another-supreme-court-victory-as-the-court-upholds-coach-kennedys-right-to-pray-after-football-games-in-kennedy-v-bremerton-school-district|archive-date=November 23, 2022}}</ref>

The opponents of those who firmly subscribe to the separation of church and state: separationists, are [[accommodationists]].<ref>{{cite web |author1=Michael P. Bobic |author2=John R. Vile |title=Accommodationism and Religion |url=https://mtsu.edu/first-amendment/article/825/accommodationism-and-religion |publisher=The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies |access-date=June 14, 2020 |archive-url=https://web.archive.org/web/20200614164258/https://mtsu.edu/first-amendment/article/825/accommodationism-and-religion |archive-date=June 14, 2020 |year=2009}}</ref> They argue, along with Justice [[William O. Douglas]], that "[w]e are a religious people whose institutions presuppose a Supreme Being."{{Sfn|Shultz|2005|p=144}} Chief Justice [[Warren E. Burger]] coined the term "benevolent neutrality" as a combination of neutrality and accommodationism to characterize a way to ensure that the Establishment Clause and the Free Exercise Clause do not contradict each other.<ref name="Benevolent Neutrality2">{{cite web |last1=Vile |first1=John R. |title=Benevolent Neutrality |url=https://mtsu.edu/first-amendment/article/826/benevolent-neutrality |archive-url=https://archive.today/20200803122503/https://mtsu.edu/first-amendment/article/826/benevolent-neutrality |archive-date=August 3, 2020 |access-date=August 3, 2020 |publisher=The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies.}}</ref>{{efn|Burger explained the term "benevolent neutrality" with respect to the interplay of the Establishment Clause and the Free Exercise Clause in this way in ''Walz'': "The course of constitutionality neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."<ref name="Benevolent Neutrality2"/>}} Burger's successor, [[William Rehnquist]], called for the abandonment of the "wall of separation between church and State" metaphor in ''[[Wallace v. Jaffree]]'' (1985), because he believed this metaphor was based on bad history and proved itself useless as a guide to judging.<ref>{{cite web|title=Wallace v. Jaffree, 472 U.S. 38 (1985)|url=https://supreme.justia.com/cases/federal/us/472/38/|publisher=Justia US Supreme Court Center|access-date=June 25, 2020|date=June 4, 1985}}</ref> For many [[Conservatism in the United States|conservatives]], the Establishment Clause solely prevents the government from promoting a religious sect or setting up a national church but not from "developing policies that encourage general religious beliefs."<ref name="Devigne">{{cite book |author=Devigne |first=Robert |url=https://books.google.com/books?id=CayIq_Ud5j0C&q=conservatives+establishment+clause&pg=PA108 |title=Recasting Conservatism: Oakeshott, Strauss, and the Response to Postmodernism |publisher=Yale University Press |year=1994 |isbn=0-300-05594-3 |location=New Haven, Connecticut |pages=108}}</ref> In ''[[Lynch v. Donnelly]]'' (1984), the Supreme Court observed that the "Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."<ref>{{cite web|title=Lynch v. Donnelly, 465 U.S. 668 (1984)|url=https://supreme.justia.com/cases/federal/us/465/668/|publisher=Justia US Supreme Court Center|access-date=May 28, 2020}}</ref>
===Free exercise of religion===

{{See also|Free Exercise Clause}}[[File:Civil marriage is a civil right.JPG|thumb|The U.S. guarantees [[freedom of religion]], and some churches in the U.S. take strong stances on political subjects.|alt=Freedom of religion and political involvement|left]]The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. The First Amendment makes clear that it sought to protect "the free exercise" of religion, or what might be called "free exercise equality."<ref name="20191101FarrReligousFreedom" /> Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits governmental interference with religious belief and, within limits, religious practice.<ref name="20021226ReligiousFreedomEducationProject" /> "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order."<ref>{{cite web|title=Supreme Court Cases: Reynolds v. United States, 1879|url=http://www.phschool.com/atschool/ss_web_codes/supreme_court_cases/reynolds.html|website=PHSchool.com|publisher=Pearson Prentice Hall|access-date=August 28, 2016|archive-url=https://web.archive.org/web/20191019100948/http://www.phschool.com/atschool/ss_web_codes/supreme_court_cases/reynolds.html|archive-date=October 19, 2019}}</ref> The clause withdraws from legislative power, [[U.S. state|state]] and [[Federal government of the United States|federal]], the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.<ref>{{cite web |title=Abington School District v. Schempp, 374 U.S. 203 (1963) at 222-223 |url=https://supreme.justia.com/cases/federal/us/374/203/ |publisher=Justia US Supreme Court Center |access-date=January 5, 2022 |date=June 17, 1963}}</ref> In ''[[Cantwell v. Connecticut]]'' (1940), the Court held that the [[Fourteenth Amendment to the United States Constitution#Due Process Clause|Due Process Clause of the Fourteenth Amendment]] [[Incorporation of the Bill of Rights|applied]] the Free Exercise Clause to the states.{{Sfn|Shultz|2005|p=65}} 

The Court further explained in ''[[Employment Division v. Smith]]'' (1990) that "the 'exercise of religion' often involves not only [[Belief#Religion|belief]] and [[profession]] but the performance of (or abstention from) physical acts: assembling with others for a [[Church service|worship service]], [[Eucharist|participating in sacramental use of bread and wine]], [[Proselytism|proselytizing]], abstaining from certain foods or certain modes of transportation."<ref>{{cite web |date=April 17, 1990 |title=''Employment Div. v. Smith'', 494 U.S. 872 (1990), at 877-878 |url=https://supreme.justia.com/cases/federal/us/494/872/ |access-date=July 23, 2020 |publisher=Justia US Supreme Court Center}}</ref> Judge [[Learned Hand]] said in the 1953 case ''Otten v. Baltimore & Ohio R. Co.'': "The First Amendment ... gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his own religious necessities."<ref>{{cite web |date=June 26, 1985 |title=Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) at page 710. |url=https://supreme.justia.com/cases/federal/us/472/703/ |access-date=December 14, 2020 |publisher=Justia US Supreme Court Center}}</ref>

The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion but also against penalties on the free exercise of religion and against indirect governmental coercion.<ref>{{cite web |title=Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988), at 450 |url=https://supreme.justia.com/cases/federal/us/485/439/ |publisher=Justia US Supreme Court Center |access-date=July 23, 2020 |date=April 19, 1988}}</ref> The Supreme Court stated in ''[[Trinity Lutheran Church of Columbia, Inc. v. Comer]]'' (2017) that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for "special disabilities" based on their "religious status" must be covered by the application of [[strict scrutiny]].<ref>{{cite web|title=''Trinity Lutheran Church of Columbia, Inc. v. Comer'', 582 U.S. ___ (2017), Opinion of the Court, Part II|url=https://supreme.justia.com/cases/federal/us/582/15-577/|publisher=Justia US Supreme Court Center|access-date=July 23, 2020|date=June 26, 2017}}</ref>

The Court first fully addressed the Free Exercise Clause's meaning in ''[[Reynolds v. United States]]'' (1879), which concerned the [[Legality of polygamy in the United States|legality of polygamy]] in the U.S. the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can regulate religious practices like polygamy and [[human sacrifice]].{{Sfn|Shultz|2005|pp=381–382}} While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.{{Sfn|Shultz|2005|p=|pp=65, 382}} Such an interpretation was largely abandoned in ''[[Sherbert v. Verner]]'' (1963). Here, the Court required states to meet the "[[strict scrutiny]]" standard when refusing to accommodate religiously motivated conduct.{{Sfn|Shultz|2005|p=138}} In ''Employment Division'', however, the Court reaffirmed ''Reynolds'' as it held that two counsellors could be dismissed for using a drug common in Native American religious worship without violating the Free Exercise Clause.{{Sfn|Shultz|2005|p=138}}

''Employment Division v. Smith'' set the [[Precedent#United States legal system|precedent]]<ref name="20210617VoxMillhiser">{{cite web | url = https://www.vox.com/2021/6/17/22538645/supreme-court-fulton-philadelphia-lgbtq-catholic-social-services-foster-care-john-roberts-religion | title = An epic Supreme Court showdown over religion and LGBTQ rights ends in a whimper | first = Ian | last = Millhiser | date = June 17, 2021 | access-date = June 17, 2021 | work = [[Vox (website)|Vox]]|archive-url=https://web.archive.org/web/20210618192557/https://www.vox.com/2021/6/17/22538645/supreme-court-fulton-philadelphia-lgbtq-catholic-social-services-foster-care-john-roberts-religion|archive-date=June 18, 2021 }}</ref> "that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion."<ref>{{cite web | url = https://www.advocate.com/news/2021/6/17/what-supreme-court-ruling-foster-care-means-lgbtq-parents | title = What the Supreme Court Ruling on Foster Care Means for LGBTQ+ Parents | first = Trudy | last = Ring | date = June 17, 2021 | access-date = June 17, 2021 | work = [[The Advocate (LGBT magazine)|The Advocate]]|archive-url=https://web.archive.org/web/20210618164810/https://www.advocate.com/news/2021/6/17/what-supreme-court-ruling-foster-care-means-lgbtq-parents|archive-date=June 18, 2021 }}</ref>

To accept any creed or the practice of any form of worship cannot be compelled by laws, because, as stated by the Supreme Court in ''[[Braunfeld v. Brown]]'' (1961), the freedom to hold religious beliefs and opinions is absolute.<ref name="19610529Braunfeld">{{cite web |date=May 29, 1961 |title=Braunfeld v. Brown, 366 U.S. 599 (1961) at 603 |url=https://supreme.justia.com/cases/federal/us/366/599/ |access-date=August 12, 2020 |publisher=Justia US Supreme Court Center}}</ref> 

In some cases, the Establishment Clause and Free Exercise Clause collide with each other, as enforced separation of church and state ends up discriminating against religious groups. For example, ''[[Lamb's Chapel v. Center Moriches Union Free School District]]'' (1993), the Court ruled that Center Moriches school board could not bar a Christian group from using school facilities after hours, even though the board claimed that such use would constitute the establishment of a religion.{{Sfn|Shultz|2005|pp=145, 252–253}}

==Freedom of speech ==
{{further<!--Main is ONLY for summary-style overviews of a subarticle; Further is the correct template when "the section expounds a specific aspect of the topic instead of summarizing its article".-->|Freedom of speech in the United States|United States free speech exceptions}}
[[File:First Amendment inscription.JPG|thumb|Inscription of the First Amendment (December 15, 1791) in front of [[Independence Hall]] in Philadelphia]]
The First Amendment broadly protects the rights of free speech and free press.<ref name="19720626MosleyOpinionOfTheCourt" /> Free speech means the free and public expression of opinions without censorship, interference, or restraint by the government.<ref>{{cite dictionary |title=freedom of speech |dictionary=The American Heritage Dictionary of the English Language |edition=5th |year=2020 |url=https://ahdictionary.com/word/search.html?q=Freedom+of+speech |publisher=Houghton Mifflin Harcourt |access-date=July 28, 2020 |archive-url=https://web.archive.org/web/20200728051257/https://ahdictionary.com/word/search.html?q=Freedom+of+speech |archive-date=July 28, 2020}}</ref><ref>{{cite dictionary |title=freedom of speech |url=https://www.merriam-webster.com/dictionary/freedom%20of%20speech |dictionary=[[Merriam-Webster]] |access-date=July 28, 2020 |archive-url=https://web.archive.org/web/20200229134124/https://www.merriam-webster.com/dictionary/freedom%20of%20speech |archive-date=February 29, 2020}}</ref><ref>{{cite dictionary |title=free speech |url=https://dictionary.cambridge.org/de/worterbuch/englisch/free-speech |dictionary=[[Cambridge Advanced Learner's Dictionary]] |access-date=July 28, 2020 |archive-url=https://web.archive.org/web/20190916143258/https://dictionary.cambridge.org/de/worterbuch/englisch/free-speech |archive-date=September 16, 2019}}</ref><ref>{{cite dictionary |title=freedom of speech |url=https://www.dictionary.com/browse/freedom-of-speech |dictionary=[[Dictionary.com]] |access-date=July 28, 2020 |archive-url=https://web.archive.org/web/20190616121744/https://www.dictionary.com/browse/freedom-of-speech |archive-date=June 16, 2019}}</ref> The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say.<ref>{{cite web |title=Riley v. National Federation of the Blind, 487 U.S. 781 (1988), at 796 – 797 |url=https://supreme.justia.com/cases/federal/us/487/781/ |publisher=Justia US Supreme Court Center |access-date=July 28, 2020}}</ref> The speech covered by the First Amendment covers many ways of expression and therefore protects what people say as well as how they express themselves.<ref>{{cite web |last1=Morillo |first1=Elaine |title=How Would an Absolute First Amendment Benefit Modern Society? |url=https://thesocialtalks.com/opinion/how-would-an-absolute-first-amendment-benefit-modern-society/ |website=Thesocialtalks |access-date=November 21, 2023 |archive-url=https://web.archive.org/web/20231121202915/https://thesocialtalks.com/opinion/how-would-an-absolute-first-amendment-benefit-modern-society/ |archive-date=November 21, 2023 |date=January 4, 2023 |quote=It is important to note that the First Amendment applies to many expressions, including verbal and non-verbal communication, written communication, sign language, body language, facial expressions, gestures, symbols, and images. This means that the First Amendment protects not just what we say but also how we express ourselves.}}</ref> Free press means the right of individuals to express themselves through publication and dissemination of information, ideas, and opinions without interference, constraint, or prosecution by the government.<ref name="CornellFirstAmendmentOverview" /><ref name="McConnellNov2013" /> In ''[[Murdock v. Pennsylvania]]'' (1943), the Supreme Court stated that "Freedom of press, freedom of speech, freedom of religion are in a preferred position."<ref>''Murdock v. Pennsylvania'' {{Ussc|volume=319|page=105|date=1943}} at 115</ref> The Court added that a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying, or distasteful.<ref>{{cite web |title=Murdock v. Pennsylvania, 319 U.S. 105 (1943), at 116|url=https://supreme.justia.com/cases/federal/us/319/105/ |publisher=Justia US Supreme Court Center |access-date=January 10, 2022 |date=May 3, 1943}}</ref> The Constitution protects, according to the Supreme Court in ''[[Stanley v. Georgia]]'' (1969), the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts.<ref>{{cite web |date=April 7, 1969 |title=Stanley v. Georgia, 394 U.S. 557 (1969), at 564–566. |url=https://supreme.justia.com/cases/federal/us/394/557/ |access-date=December 27, 2020 |publisher=Justia US Supreme Court Center}}</ref> As stated by the Court in ''Stanley'': "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."<ref name=":1">{{cite web |date=April 7, 1969 |title=Stanley v. Georgia, 394 U.S. 557 (1969), at 565. |url=https://supreme.justia.com/cases/federal/us/394/557/ |access-date=December 27, 2020 |publisher=Justia US Supreme Court Center}}</ref>

Despite the common misconception that the First Amendment prohibits anyone from limiting free speech,<ref name="McGregor">{{cite news |last1=McGregor |first1=Jena |date=August 8, 2017 |title=The Google memo is a reminder that we generally don't have free speech at work |url=https://www.washingtonpost.com/news/on-leadership/wp/2017/08/08/the-google-memo-is-a-reminder-that-we-generally-dont-have-free-speech-at-work/ |archive-url=https://web.archive.org/web/20200125155407/https://www.washingtonpost.com/news/on-leadership/wp/2017/08/08/the-google-memo-is-a-reminder-that-we-generally-dont-have-free-speech-at-work/ |archive-date=January 25, 2020 |access-date=March 1, 2019 |newspaper=The Washington Post |language=en}}</ref> the text of the amendment prohibits only the federal government, the states, and local governments from doing so.<ref>{{cite web |title=What Does Free Speech Mean? |url=https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does |archive-url=https://web.archive.org/web/20220104180603/https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does |archive-date=January 4, 2022 |publisher=United States Courts}}</ref><ref name="Willingham">{{cite news |last1=Willingham |first1=AJ |date=September 6, 2018 |title=The First Amendment doesn't guarantee you the rights you think it does |url=https://www.cnn.com/2017/04/27/politics/first-amendment-explainer-trnd/index.html |access-date=March 1, 2019 |work=CNN}}</ref> State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in ''[[Pruneyard Shopping Center v. Robins]]''.<ref>''[[Pruneyard Shopping Center v. Robins]]'', {{ussc|447|74|1980}}</ref>

The Supreme Court of the United States characterized the rights of free speech and free press as fundamental personal rights and liberties and noted that the exercise of these rights lies at the foundation of free government by free men.<ref>{{cite web |title=Schneider v. State, 308 U.S. 147 (1939), at 161. |url=https://supreme.justia.com/cases/federal/us/308/147/ |publisher=Justia US Supreme Court Center |access-date=February 10, 2021 |date=November 21, 1939}}</ref><ref>{{cite encyclopedia |last1=Vile|first1=John R. |title=Schneider v. State (1939) |url=https://mtsu.edu/first-amendment/article/281/schneider-v-state |encyclopedia=The First Amendment Encyclopedia |publisher=John Seigenthaler Chair of Excellence in First Amendment Studies |access-date=February 10, 2021 |archive-url=https://web.archive.org/web/20210125183725/https://mtsu.edu/first-amendment/article/281/schneider-v-state |archive-date=January 25, 2021}}</ref> The Supreme Court stated in ''[[Thornhill v. Alabama]]'' (1940) that the freedom of speech and of the press guaranteed by the [[Constitution of the United States|United States Constitution]] embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment.<ref>{{cite web |title=Thornhill v. Alabama, 310 U.S. 88 (1940), at 101-102 |url=https://supreme.justia.com/cases/federal/us/310/88/ |publisher=Justia US Supreme Court Center |access-date=November 11, 2023 |archive-url=https://web.archive.org/web/20230529044715/https://supreme.justia.com/cases/federal/us/310/88/ |archive-date=May 29, 2023}}</ref> The Court noted in ''Bridges v. California'' (1941): "The ability to publicly criticize even the most prominent politicians and leaders without fear of retaliation is part of the First Amendment, because political speech is core First Amendment speech. ... For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions."<ref>{{cite web |date=December 8, 1941 |title=Bridges v. California, 314 U.S. 252 (1941), at 263 and 270-271. |url=https://supreme.justia.com/cases/federal/us/314/252/ |access-date=December 2, 2022 |publisher=Justia US Supreme Court Center}}</ref> In ''[[Bond v. Floyd]]'' (1966), a case involving the Constitutional shield around the speech of elected officials, the Supreme Court declared that the First Amendment central commitment is that, in the words of ''[[New York Times Co. v. Sullivan]]'' (1964), "debate on public issues should be uninhibited, robust, and wide-open".<ref name=":2">{{cite web |title=''Bond v. Floyd'', 385 U.S. 116 (1966), at 136. |url=https://supreme.justia.com/cases/federal/us/385/116/ |publisher=Justia US Supreme Court Center |access-date=February 9, 2021 |date=December 5, 1966}}</ref> The Court further explained that just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected:

{{quote|But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. ... To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."<ref name="19720626MosleyOpinionOfTheCourt">{{cite web|title=Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972), at 95–96|url=https://supreme.justia.com/cases/federal/us/408/92/|publisher=Justia US Supreme Court Center|access-date=July 3, 2020|date=June 26, 1972|archive-date=July 4, 2020|archive-url=https://web.archive.org/web/20200704062648/https://supreme.justia.com/cases/federal/us/408/92/|url-status=dead}}</ref>}}

The level of protections with respect to free speech given by the First Amendment is not limitless.<ref name=":14" /> As stated in his concurrence in ''Mosley'', Chief Justice [[Warren E. Burger]] said: "the First Amendment does not literally mean that we 'are guaranteed the right to express any thought, free from government censorship.'"<ref>{{cite web |date=June 26, 1972 |title=Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972), at 103 |url=https://supreme.justia.com/cases/federal/us/408/92/ |url-status=dead |archive-url=https://web.archive.org/web/20200704062648/https://supreme.justia.com/cases/federal/us/408/92/ |archive-date=July 4, 2020 |access-date=July 3, 2020 |publisher=Justia US Supreme Court Center}}</ref>

Attached to the core rights of free speech and free press are several peripheral rights that make these core rights more secure. The peripheral rights encompass not only [[freedom of association]], including [[privacy]] in one's associations, but also, in the words of ''[[Griswold v. Connecticut]]'' (1965), "[[Academic freedom|the freedom of the entire university community]]", i.e., the right to distribute, the right to receive, and the right to read, as well as freedom of inquiry, [[freedom of thought]], and freedom to teach.<ref>{{cite web |title=Griswold v. Connecticut, 381 U.S. 479 (1965), at 482–483 |url=https://supreme.justia.com/cases/federal/us/381/479/ |publisher=Justia US Supreme Court Center |access-date=July 30, 2020 |date=June 7, 1965}}</ref> 

===Wording of the clause===

The First Amendment bars Congress from "abridging the freedom of speech, or of the press." U.S. Supreme Court Justice [[John Paul Stevens]] commented about this phraseology in a 1993 journal article: "I emphasize the word 'the' in the term 'the freedom of speech' because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech." Stevens said that, otherwise, the clause might absurdly immunize things like false testimony under oath.<ref>{{cite journal |last=Stevens |first=John Paul |title=The Freedom of Speech |journal=[[Yale Law Journal]] |volume=102 |issue=6 |page=1296 |date=April 1993 |doi=10.2307/796971 |jstor=796971}}</ref> Like Stevens, journalist [[Anthony Lewis]] wrote: "The word 'the' can be read to mean what was understood at the time to be included in the concept of free speech."{{sfn|Lewis|2007|p=40}} But what was understood at the time is not entirely clear.{{sfn|Lewis|2007|p=41}} In the late 1790s, the lead author of the speech and press clauses, [[James Madison]], argued against narrowing this freedom to what had existed under English [[common law]]: "The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law."<ref name="Dry2">{{cite book |last=Dry |first=Murray |url=https://books.google.com/books?id=7S02AAAAQBAJ&pg=PA70 |title=Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism |publisher=Lexington Books |year=2004 |pages=68–70 |isbn=978-0-7391-5305-5 }}</ref>

Madison wrote this in 1799, when he was in a dispute about the constitutionality of the [[Alien and Sedition Laws]], which was legislation enacted in 1798 by President [[John Adams]]'s [[Federalist Party]] to ban [[seditious libel]]. Madison believed that legislation to be unconstitutional, and his adversaries in that dispute, such as [[John Marshall]], advocated the narrow freedom of speech that had existed in the English common law.<ref name=Dry>{{cite book |last=Dry |first=Murray |title=Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism |url=https://books.google.com/books?id=7S02AAAAQBAJ&pg=PA70 |pages=68–70 |publisher=Lexington Books |year=2004 |isbn=978-0-7391-5305-5 }}</ref>

===Historical outlook===

The Supreme Court declined to rule on the [[constitutionality]] of any federal law regarding the Free Speech Clause until the twentieth century{{sfn|Lewis|2007|p=15}} and tended to overlook free speech protection.<ref name=":14">{{Cite web |last1=Stone |first1=Geoffrey R. |last2=Volokh |first2=Eugene |title=Freedom of Speech and the Press |url=https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/266 |access-date=September 11, 2025 |website=National Constitution Center}}</ref> For example, the Court never ruled on the [[Alien and Sedition Acts]]; three Supreme Court justices [[riding circuit]] presided over sedition trials without indicating any reservations.{{sfn|Lewis|2007|p=15}} The leading critics of the law, [[Thomas Jefferson]] and [[James Madison]], argued for the Acts' unconstitutionality based on the First Amendment and other Constitutional provisions.{{sfn|Lewis|2007|pp=16–17}} Punishment for [[blasphemy]] was affirmed throughout the nineteenth century.<ref name=":14" />
[[File:Debs Canton 1918 large.jpg|alt=Eugene V. Debs|thumb|[[Eugene V. Debs]] was convicted for delivering a speech in which he recalled visiting three imprisoned men who had abetted [[draft evasion]].{{Sfn|Lewis|2007|p=27}}]]
During the patriotic fervor of [[World War I]] and the [[Red Scare]],{{sfn|Lewis|2007|p=25}} the Court sought to restrict speech seen as promoting crime.<ref name=":14" /> In one such case, [[Socialist Party of America]] official [[Charles Schenck]] was convicted under the [[Espionage Act of 1917]] for publishing leaflets urging resistance to the draft.{{sfn|Abrams|2006|pp=65–66}} Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. In ''[[Schenck v. United States]]'', the Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction.<ref>''Schenck v. United States'', {{ussc|249|47|1919}}</ref> Justice [[Oliver Wendell Holmes Jr.]] explained that "the question in every case is whether the words used 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 a right to prevent."{{Sfn|Lewis|2007|p=26}}[[File:Brandeisl.jpg|thumb|Justice [[Louis Brandeis]] wrote several dissents in the 1920s upholding free speech claims.{{Sfn|Lewis|2007|p=34}}|alt=Louis Brandeis|left]]

However, this trend changed in the 1920s, as the Court began interpreting the First Amendment more broadly.<ref name=":14" /> In ''[[Gitlow v. New York]]'' (1925), the Court upheld the conviction of [[Benjamin Gitlow]], who had been convicted after distributing a manifesto calling for a "revolutionary [[dictatorship of the proletariat]]."{{sfn|Lewis|2007|p=35, 108}} At the same time, a majority found that the First Amendment applied to state laws as well as federal laws,{{sfn|Jasper|1999|p=24}}{{sfn|Lewis|2007|p=35}} the first time the Court formally accepted this view.<ref name=":14" /> Free speech cases thereafter would generally concern state suppression.{{sfn|Lewis|2007|p=35}} In ''[[Whitney v. California]]'' (1927), Justice [[Louis Brandeis]] wrote a dissent in which he argued for broader protections for political speech: "Those who won our independence{{nbsp}}... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; ... that public discussion is a political duty; and that this should be a fundamental principle of the American government."{{sfn|Lewis|2007|p=36}}

In ''[[Herndon v. Lowry]]'' (1937), the Court heard the case of African American Communist Party organizer [[Angelo Herndon]], who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States. The Court reversed Herndon's conviction, holding that [[Georgia (U.S. state)|Georgia]] had failed to demonstrate any "clear and present danger" in Herndon's political advocacy.{{sfn|Jasper|1999|p=26}} The importance of freedom of speech in the context of "clear and present danger" was emphasized in ''[[Terminiello v. City of Chicago]]'' (1949), where Justice [[William O. Douglas]] wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."<ref>''Terminiello v. City of Chicago'' {{ussc|337|1|1949}} at 4</ref>

Following ''[[Thornhill v. Alabama]]'' (1940), the Court refrained from applying clear and present danger test in several free speech cases involving incitement to violence.<ref>Antieu, Chester James, ''Commentaries on the Constitution of the United States'', Wm. S. Hein Publishing, 1998, p 219, {{ISBN|9781575884431}}. Antieu names ''[[Feiner v. New York]]'', 340 U.S. 315 (1951); ''[[Chaplinsky v. New Hampshire]]'' 315 U.S. 568 (1942); and ''[[Kovacs v. Cooper]]'', 335 U.S. 77 (1949).</ref> In 1940, Congress enacted the [[Smith Act]], making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."<ref>{{usc|18|2385}}</ref> In ''[[Dennis v. United States]]'' (1951), the Court upheld the law.{{sfn|Jasper|1999|p=28}}{{efn|Justice [[Tom C. Clark]] did not participate because he had ordered the prosecutions when he was [[United States Attorney General|Attorney General]].}} In a concurring opinion, Justice [[Felix Frankfurter]] proposed a "balancing test," which soon supplanted the "clear and present danger" test: "The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process."{{sfn|Jasper|1999|p=28}}

During the [[Vietnam War]], the Court's position on public criticism of the government changed drastically,{{sfn|Jasper|1999|p=32}} as its reading of the First Amendment broadened further.<ref name=":14" /> In 1969, it handed down its decision in ''[[Brandenburg v. Ohio]]'' (1969), expressly overruling ''Whitney v. California''.{{sfn|Jasper|1999|p=32}} ''Brandenburg'' discarded the "clear and present danger" test introduced in ''Schenck'' and further eroded ''Dennis''.<ref>''Brandenburg'', at 450–1</ref>{{sfn|Lewis|2007|p=124}} Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms: "the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing [[imminent lawless action]] and is likely to incite or cause such action."<ref>''Brandenburg'', at 447</ref>{{sfn|Jasper|1999|p=32}}
===Political speech===
====Anonymous speech====

The Supreme Court has generally safeguarded [[Anonymity#United States|anonymous speech]] under the First Amendment. This is especially pertinent in cases concerning controversial political groups, such as the [[NAACP v. Alabama|NAACP]] and the [[Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton|Watchtower Bible and Tract Society]], where their anonymity helped secure their right to assembly.<ref name=":6">{{Cite web |last=Hayward |first=Allison |date=January 11, 2025 |title=Anonymous Speech |url=https://firstamendment.mtsu.edu/article/anonymous-speech/# |access-date=September 10, 2025 |website=Free Speech Center}}</ref> In ''[[Talley v. California]]'' (1960), the Court struck down a [[Los Angeles]] city ordinance that criminalized distributing anonymous pamphlets. Justice [[Hugo Black]] wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression."<ref>[https://supreme.justia.com/cases/federal/us/362/60/ ''Talley v. California, 362 U.S. 60'' (1960)] at 364</ref> However, the court has been less protective of such speech in campaign finance donations and on the [[internet]].<ref name=":6" />

====Campaign finance====

{{See also|Campaign finance reform in the United States}}
The Court considers campaign donations as speech sometimes protected by the First Amendment.<ref>{{Cite web |last=Tucker |first=Lisa |date=June 29, 2011 |title=The last week of the Term: In Plain English |url=https://www.scotusblog.com/2011/06/the-last-week-of-the-term-in-plain-english/ |access-date=September 11, 2025 |website=SCOTUSblog}}</ref> In ''[[Buckley v. Valeo]]'' (1976), the Supreme Court affirmed the constitutionality of limits on campaign contributions,<ref>{{Cite web |last=Quimbee |date=September 28, 2018 |title=Campaign finance reform ruling takes it to the limits (Buckley v. Valeo) |url=https://www.americanbar.org/groups/law_students/resources/on-demand/quimbee-buckley-v-valeo/ |access-date=September 11, 2025 |website=American Bar Association}}</ref> saying they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."<ref>''[[Buckley v. Valeo]], {{ussc|424|1|1976}}'' at 58</ref> However, the same decision established campaign finance as a form of political speech.<ref name=":11">{{Cite web |last=Webster |first=Daniel I. |date=January 29, 2025 |title=Citizens United Explained |url=https://www.brennancenter.org/our-work/research-reports/citizens-united-explained |access-date=September 11, 2025 |website=Brennan Center for Justice}}</ref> Over thirty years later, the Court ruled in ''[[Citizens United v. Federal Election Commission]]'' (2010) that restrictions on independent political spending by corporations or [[Trade union|unions]] violated the Free Speech Clause and were therefore unconstitutional.<ref>''Citizens United v. FEC'' {{Ussc|volume=558|page=310|date=2010}}</ref> This, in effect, "enabled corporations and other outside groups to spend unlimited money on elections."<ref name=":11" /> Federal aggregate limits on how much a person can donate to candidates, parties, and [[Political action committee|political action committees]] were later found to clash with the First Amendment in ''[[McCutcheon v. Federal Election Commission]]'' (2014).<ref>{{cite web |last=Howe |first=Amy |date=April 2, 2014 |title=Divided Court strikes down campaign contribution caps: In Plain English |url=http://www.scotusblog.com/2014/04/divided-court-strikes-down-campaign-contribution-caps-in-plain-english/ |access-date=April 11, 2014 |publisher=SCOTUSblog}}</ref>

==== Professional/occupational speech ====
Some federal courts have suggested that a First Amendment distinction exists between speech directed at the public and speech aimed at individuals in a professional, fiduciary, or business context—so called occupational, or professional, speech.<ref name=":5">{{Cite web |last=Sherman |first=Paul |date=March 2015 |title=Occupational Speech and the First Amendment |url=https://harvardlawreview.org/forum/vol-128/occupational-speech-and-the-first-amendment/ |access-date=September 10, 2025 |website=Harvard Law Review}}</ref> For example, in ''Lowe v. Securities Exchange Commission'' (1985), [[Byron White|Justice Byron White]] argued that the government could permissibly restrict the speech of "[o]ne who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances."<ref name=":5" /> Over time, a number of courts adopted Justice White's view in what became known as the "professional speech doctrine."<ref>{{Cite journal |last=Haupt |first=Claudia E. |date=March 2016 |title=Professional Speech |url=https://openyls.law.yale.edu/server/api/core/bitstreams/12571cbf-9b01-471a-92f2-3bb01ff51e0c/content |journal=The Yale Law Review |volume=125 |issue=5 |pages=1258–1259}}</ref> In ''[[National Institute of Family and Life Advocates v. Becerra|National Institute of Family & Life Advocates v. Becerra]]'' (2018), however, the Supreme Court repudiated the doctrine, claiming that "this Court has never recognized 'professional speech' as a separate category of speech subject to different rules."<ref>[https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf ''National Institute of Family and Life Advocates v. Becerra'', 585 U.S. 755 (2018)] at 2</ref>

====Flag desecration====
[[File:Iranian Protesters Burning USA Flag.jpg|alt=Flag desecration|thumb|[[Flag desecration#United States|Flag desecration]] is the subject of intense debate over the extent of First Amendment speech protections.]]
There has been significant debate over whether [[Flag desecration#United States|flag desecration]] is protected by the First Amendment.{{Sfn|Jasper|1999|pp=43–45}} The Supreme Court addressed this issue in ''[[Street v. New York]]'' (1969), amid a popular trend of burning the [[Flag of the United States|U.S. flag]] to protest the [[Vietnam War]].{{sfn|Jasper|1999|p=43}} While it found a New York law criminalizing attacking any U.S. flag in various ways<ref>[https://supreme.justia.com/cases/federal/us/394/576/ ''Street v. New York, 394 U.S. 576'' (1969)] at 578</ref> unconstitutional, it left the constitutionality of flag-burning unaddressed.<ref>[https://supreme.justia.com/cases/federal/us/394/576/ ''Street v. New York, 394 U.S. 576'' (1969)] at 581</ref>{{sfn|Jasper|1999|p=43}} However, in ''[[Texas v. Johnson]]'' (1989), the Court explicitly ruled that flag burnings are a form of protected speech.<ref name=":7">{{Cite web |last=Dallas |first=Kelsey |date=August 29, 2025 |title=The Supreme Court and flag burning: an explainer |url=https://www.scotusblog.com/2025/08/the-supreme-court-and-flag-burning-an-explainer/ |access-date=September 10, 2025 |website=SCOTUSblog}}</ref>  

==== School speech ====
{{Main|Freedom of speech in schools in the United States}}

In ''[[Tinker v. Des Moines Independent Community School District]]'' (1969), the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War.<ref>''[[Tinker v. Des Moines Independent Community School District]]'', {{ussc|393|503|1969}}</ref> The Court ruled that the school could not restrict symbolic speech that did not "materially and substantially" interrupt school activities.{{sfn|Jasper|1999|p=61}} Justice [[Abe Fortas]] wrote: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."<ref>''[[Tinker v. Des Moines Independent Community School District]]'', {{ussc|393|503|1969}} at 506</ref> However, since 1969, the Court has also placed several limitations on ''Tinker''. In ''[[Hazelwood v. Kuhlmeier]]'' (1988), the Court found that schools need not tolerate student speech that is inconsistent with their basic educational mission,{{sfn|Jasper|1999|pp=62–63}} and in ''[[Morse v. Frederick]]'' (2007), it ruled that schools could restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use."<ref>{{cite web |last1=Kozlowski |first1=Dan V. |last2=Bullard |first2=Melissa E. |last3=Deets |first3=Kristen |date=April 1, 2009 |title=Uncertain Rights: Student Speech and Conflicting Interpretations of Morse v. Frederick |url=http://www.highbeam.com/doc/1P3-1753810351.html |url-status=dead |archive-url=https://web.archive.org/web/20130509090535/http://www.highbeam.com/doc/1P3-1753810351.html |archive-date=May 9, 2013 |access-date=April 11, 2013 |work=Journalism and Mass Communication Quarterly |publisher=}}</ref> In 2014, the [[University of Chicago]] released the "[[Chicago principles|Chicago Statement]]", a free speech policy statement designed to combat censorship on campus, which was later adopted by other prestigious universities.<ref>{{Cite web |title=Adopting the Chicago Statement |url=https://www.thefire.org/get-involved/student-network/take-action/adopting-the-chicago-statement/ |access-date=August 26, 2019 |website=FIRE |language=en-US}}</ref><ref>{{Cite web |last=Lindsay |first=Tom |title=35 Universities Adopt 'The Chicago Statement' On Free Speech—1,606 To Go |url=https://www.forbes.com/sites/tomlindsay/2018/02/28/35-universities-adopt-the-chicago-statement-on-free-speech-1590-to-go/ |access-date=August 26, 2019 |website=Forbes |language=en}}</ref>

==== Compelled speech ====
{{further|Compelled speech}}

The Supreme Court has determined that the First Amendment also protects citizens from being compelled by the government to say or to pay for certain speech. In ''[[West Virginia State Board of Education v. Barnette]]'' (1943), it was ruled that school children could not be punished for refusing either to say the [[Pledge of Allegiance (United States)|pledge of allegiance]] or salute the [[Flag of the United States|American flag]].<ref>{{Cite encyclopedia|url=https://www.britannica.com/event/West-Virginia-State-Board-of-Education-v-Barnette|title=West Virginia State Board of Education v. Barnette|author=<!--just omit "staff": The Editors of Encyclopaedia Britannica-->|encyclopedia=[[Encyclopædia Britannica]]|date=June 7, 2020|access-date=June 21, 2020}}</ref> The Court determined in ''[[Janus v. AFSCME]]'' (2018) that requiring a [[public sector]] employee to pay dues to a union of which he is not a member violated the First Amendment.<ref>{{Cite web|url=http://www.scotusblog.com/2018/06/opinion-analysis-court-strikes-down-public-sector-union-fees/|title=Opinion analysis: Court strikes down public-sector union fees|first=Amy |last=Howe|publisher=[[SCOTUSblog]]|date=June 27, 2018|access-date=June 27, 2018}}</ref>

=== Hate and offensive speech ===
{{Main|Hate speech in the United States}}
[[File:20050930 yakima-funeral5.jpg|alt=Yakima funeral picketing|left|thumb|The First Amendment protects the right to use offensive or [[Hate speech in the United States|hateful language]].]]
Hate speech, while difficult to define precisely, is safeguarded by the First Amendment.<ref name=":0">{{Cite web |title=Is Hate Speech Legal? |url=https://www.thefire.org/research-learn/hate-speech-legal |access-date=September 12, 2025 |website=Foundation for Individual Rights and Expression}}</ref><ref name=":3">{{Cite web |title=Hate Speech and Hate Crime |url=https://www.ala.org/advocacy/intfreedom/hate |access-date=September 12, 2025 |website=American Library Association}}</ref> In fact, Justice [[John Marshall Harlan II]] addressed the subjectivity that belies one's understanding a statement as hate speech: "One man's vulgarity is another man's lyric."{{sfn|Jasper|1999|p=46}}<ref name=":0" /> The [[American Library Association]] provides a general definition of hate speech: "any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin."<ref name=":3" /> "Freedom for the thought we hate," as expressed by Justice Oliver Wendell Holmes Jr., is guaranteed, and the Court has recognized it.<ref name=":0" /> In one case, ''[[Snyder v. Phelps]]'' (2011), the Court found that individuals who picketed a military funeral holding signs stating "God Hates Fags" and "Thank God for Dead Soldiers" were acting within the limits of the First Amendment.<ref>{{Cite news |last=Liptak |first=Adam |date=March 2, 2011 |title=Justices Rule for Protesters at Military Funerals |url=https://www.nytimes.com/2011/03/03/us/03scotus.html |access-date=September 12, 2025 |work=The New York Times}}</ref> 

However, a distinction is made between hate speech and hate crimes. The latter stirs up criminal activity or threatens specific individuals or groups and is therefore illegal.<ref name=":3" /> [[Fighting words#United States|Fighting words]]—personal insults and deliberately violent statements directed at a particular person or group—also do not qualify as free speech. For instance, in the 1940s, a man who called a police officer a "God-damned racketeer” and "a damned fascist" was arrested, and the [[Chaplinsky v. New Hampshire|Court upheld his conviction]].{{Sfn|Shultz|2005|p=162–163}} On the other hand, in ''[[Texas v. Johnson]]'' (1989), it did not find public [[flag desecration]] unconstitutional and, in fact, deemed it a form of protected speech: while the act was offensive, it was not meant as a direct personal insult toward any passersby.{{Sfn|Shultz|2005|p=163}} Justice [[William J. Brennan Jr.]] wrote in the decision that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."<ref>[https://supreme.justia.com/cases/federal/us/491/397/ ''Texas v. Johnson, 491 U.S. 397'' (1989)] at 414</ref> The fighting words doctrine itself has been criticized and labelled as a "relic" of a bygone age.{{Sfn|Shultz|2005|p=163}}

=== Code as speech ===
{{Main|Code as speech}}
[[File:Munitions_T-shirt_(front).jpg|thumb|Export-restricted [[RSA (cryptosystem)|RSA]] encryption [[source code]] printed on a T-shirt made it an export-restricted munition, as a [[freedom of speech]] protest against U.S. encryption export restrictions ([[:File:Munitions T-shirt (back).jpg|Back side]]).]]
[[Code as speech]], is the doctrine that treats computer source code and similar digital expressions as speech protected by the First Amendment. Regulation of computer code most prominently began during the 1990s with the "[[Crypto Wars|crypto wars]]," when courts rejected the government's effort to classify strong [[encryption]] software as export-controlled munitions. In ''[[Bernstein v. United States]]'', the [[Ninth Circuit Court of Appeals]] held that source code is a form of expressive language.<ref>{{Cite web |last=Epstein |first=Jim |date=2020-10-21 |title=When Encryption Was a Crime: The 1990s Battle for Free Speech in Software |url=https://reason.com/video/2020/10/21/cryptowars-gilmore-zimmermann-cryptography/ |access-date=2025-12-31 |website=Reason.com |language=en-US}}</ref><ref>{{Cite web |last=Dame-Boyle |first=Alison |date=2015-04-16 |title=EFF at 25: Remembering the Case that Established Code as Speech |url=https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech |access-date=2025-12-31 |website=Electronic Frontier Foundation |language=en}}</ref><ref>{{Cite news |date=1999-05-10 |title=Opinion {{!}} Encryption and Free Speech |url=https://www.washingtonpost.com/archive/opinions/1999/05/10/encryption-and-free-speech/7f3af2df-70ce-4f81-ace0-56cece2afd06/ |access-date=2025-12-31 |work=The Washington Post |language=en-US |issn=0190-8286}}</ref> Since that ruling, the doctrine has been invoked in disputes over government pressure to weaken encryption such as the [[Apple–FBI encryption dispute|Apple-FBI phone case]].<ref>{{Cite news |last=Yadron |first=Danny |last2=Ackerman |first2=Spencer |last3=Thielman |first3=Sam |date=2016-02-25 |title=Apple accuses FBI of violating constitutional rights in iPhone battle |url=https://www.theguardian.com/technology/2016/feb/25/apple-fbi-iphone-encryption-request-response |access-date=2025-12-31 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> It has also been used as justification to extend legal protection to the development of [[Cryptocurrency|cryptocurrencies]] and [[Privacy-enhancing technologies|privacy tools]] with advocates arguing that publishing or running such software is protected speech and expression.<ref>{{Cite news |last=Jeong |first=Sarah |date=2014-02-07 |title=Is Bitcoin Free Speech? |url=https://slate.com/technology/2014/02/bitcoin-as-free-speech-regulating-cryptocurrency-has-ramifications-for-democracy.html |access-date=2025-12-31 |work=Slate |language=en-US |issn=1091-2339}}</ref><ref>{{Cite web |last=Book |first=Joakim |date=2024-05-01 |title=Groundhog Day for the crypto wars: The DOJ on bitcoin prowl |url=https://reason.com/2024/05/01/groundhog-day-for-the-crypto-wars-the-doj-on-bitcoin-prowl/ |access-date=2025-12-31 |website=Reason.com |language=en-US}}</ref> Similar arguments have been used for [[3D-printed firearm|3D-printed gun files]] and tools bypassing [[digital rights management]], with proponents of code as speech claiming that restricting distribution of code or design files is unconstitutional.<ref>Wang, Xiangnong, De-Coding Free Speech: A First Amendment Theory for the Digital Age (February 15, 2021). 2021 Wis. L. Rev. 1373, Available at SSRN: <nowiki>https://ssrn.com/abstract=4038356</nowiki></ref><ref name="brisbanetimes.com.au">{{Cite web |title=Digg finds the key is safety in numbers - web - Technology |url=http://www.brisbanetimes.com.au/news/web/digg-finds-the-key-is-safety-in-numbers/2007/05/14/1178995074634.html?page=fullpage |archive-url=https://web.archive.org/web/20150924190305/http://www.brisbanetimes.com.au/news/web/digg-finds-the-key-is-safety-in-numbers/2007/05/14/1178995074634.html?page=fullpage |archive-date=2015-09-24 |access-date=2025-07-10 |website=www.brisbanetimes.com.au |language=en}}</ref> The treatment of code as speech remains an active area of litigation and scholarly debate.<ref>{{Cite web |title=Code as Speech. |url=https://www.hks.harvard.edu/publications/code-speech |access-date=2025-12-31 |website=www.hks.harvard.edu |language=en}}</ref><ref>{{Cite journal |last=Browder |first=John J. |date=2000 |title=Encryption Source Code and the First Amendment |url=https://www.jstor.org/stable/29762672 |journal=Jurimetrics |volume=40 |issue=4 |pages=431–444 |issn=0897-1277}}</ref>

===Commercial speech===

{{Main|Commercial speech}}

Commercial speech, done for the purpose of selling a product or service,<ref name=":9">{{Cite web |last=Goldberg |first=Kevin |title=Commercial Speech and Truth in Advertising: Everything to Know |url=https://www.freedomforum.org/commercial-speech/ |access-date=September 11, 2025 |website=Freedom Forum}}</ref> is entitled to First Amendment protections but not as much as other forms of speech, such as that political.<ref name=":10">{{Cite web |last=Schultz |first=David |date=July 9, 2024 |title=Commercial Speech |url=https://firstamendment.mtsu.edu/article/commercial-speech/# |access-date=September 11, 2025 |website=Free Speech Center}}</ref> The Supreme Court began treating commercial speech thus in the 1970s; in ''[[Virginia State Pharmacy Board v. Virginia Citizens Consumer Council|Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc.]]'' (1976), it struck down a state law barring the advertisement of drug prices by pharmacies.<ref name=":10" /> The Court has since noted that "speech does not lose its protection simply because money is transacted through it," but this does not make commercial speech immune to regulation.<ref name=":10" /> In ''[[Central Hudson Gas & Electric Corp. v. Public Service Commission]]'' (1980), the Court developed a four-pronged test to clarify when to restrict such speech: it must be misleading or involve illegal activity; the government must prove "substantial interest" in regulating it; the regulation must directly advance the governmental interest asserted; and the regulation must not be more strict than necessary.<ref name=":9" /> For example, the 1986 case ''[[Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico|Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico]]'' saw the Court uphold Puerto Rico law that barred casinos from advertising to its residents, finding that it preserved the federal government's interest of preventing gambling and to protect residents' safety and well-being.<ref name=":10" />

===Defamation===

{{Further<!--Main is ONLY for summary-style overviews of a subarticle; Further is the correct template when "the section expounds a specific aspect of the topic instead of summarizing its article".-->|United States defamation law}}
[[File:Heed Their Rising Voices.jpg|alt=Heed Their Rising Voices|thumb|The ''[[The New York Times|New York Times]]'' advertisement "[[Heed Their Rising Voices]]" led to the case ''[[New York Times Co. v. Sullivan]]'' (1964) which overhauled U.S. libel law.<ref name=":12">{{Cite web |last=Hudson Jr. |first=David L. |title=Defamation and the First Amendment |url=https://www.thefire.org/research-learn/defamation-and-first-amendment |access-date=September 11, 2025 |website=Foundation for Individual Rights and Expression}}</ref>]]
For the first two-hundred years of American jurisprudence, [[Defamation|libel]] placed specific emphasis on the result of the allegedly harmful publication{{sfn|Newell|1898|pp=33–37}} over whether the publication was true or false.{{sfn|Nelson|1994|p=93}} Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule."{{sfn|Newell|1898|pp=33–37}} Two centuries later, the Supreme Court's ruling in ''[[New York Times Co. v. Sullivan]]'' (1964) transformed American defamation law.<ref name="Schmitt 20142">Rick Schmitt, [https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/october-2014-nyt-sullivan.cfm "Window to the Past: ''New York Times Co. v. Sullivan''"] {{Webarchive|url=https://web.archive.org/web/20160806121500/https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/october-2014-nyt-sullivan.cfm|date=2016-08-06}}, ''Washington Lawyer'', October 2014.</ref> Common law malice consisted of "ill-will" or "wickedness," and thereafter, public officials seeking a lawsuit against a [[Tort|tortfeasor]] needed to prove by "clear and convincing evidence" that there was [[actual malice]].<ref>''New York Times Co. v. Sullivan'' {{Ussc|volume=376|page=254|date=1964}} at 280</ref>{{sfn|Jasper|1999|pp=9–10}} "Libel can claim no talismanic immunity from constitutional limitations," Justice [[William J. Brennan Jr.]] noted.<ref name=":12" /> While the actual malice standard applies to public officials and public figures, in  ''[[Gertz v. Robert Welch, Inc.]]'' (1974) the Court ruled that actual malice need not be shown in cases involving private individuals.<ref name=":12" /> Moreover, in ''[[Milkovich v. Lorain Journal Co.]]'' (1990), it was ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled "opinion," but instead that a statement must be [[Falsifiability|provably false]] before it can be the subject of a libel suit.<ref>{{cite encyclopedia |title=Milkovich v. Lorain Journal Co. 497 U.S. 1 (1990) |encyclopedia=Encyclopedia of the American Constitution |publisher= |url=http://www.highbeam.com/doc/1G2-3425001663.html |access-date=April 19, 2013 |date=January 1, 2000 |url-status=dead |archive-url=https://web.archive.org/web/20130509082207/http://www.highbeam.com/doc/1G2-3425001663.html |archive-date=May 9, 2013}}</ref>
===Obscenity and pornography ===

{{Further<!--Main is ONLY for summary-style overviews of a subarticle; Further is the correct template when "the section expounds a specific aspect of the topic instead of summarizing its article".-->|United States obscenity law|Pornography in the United States}}According to the Supreme Court, the First Amendment's protection of free speech does not necessarily apply to [[Obscenity|obscene]] speech.<ref name=":8">{{Cite web |title=Amdt1.7.5.11 Obscenity |url=https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812/ |access-date=September 11, 2025 |website=Constitution Annotated}}</ref> It first tackled the matter in ''[[Roth v. United States]]'' (1957), in which it ruled that the First Amendment did not protect obscenity; the same case founded a standard to determine whether the material in question qualifies as obscenity.<ref name=":8" /> Throughout the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene.{{sfn|Lewis|2007|pp=135–136}} Justice [[Potter Stewart]], in ''[[Jacobellis v. Ohio]]'' (1964), famously said that, although he could not precisely define pornography, "[[I know it when I see it]]."<ref>{{cite news|first=Peter|last=Lattman|title=The Origins of Justice Stewart's 'I Know It When I See It'|date=September 27, 2007|newspaper=[[Wall Street Journal]]|publisher=LawBlog at The Wall Street Journal Online|url=https://blogs.wsj.com/law/2007/09/27/the-origins-of-justice-stewarts-i-know-it-when-i-see-it/|access-date=December 31, 2014}}</ref> The so-called ''Roth'' test was expanded when the Court decided ''[[Miller v. California]]'' (1973). Under the [[Miller test|''Miller'' test]], a work is obscene if: "a) 'the average person, applying contemporary community standards' would find the work, as a whole, appeals to the prurient interest{{nbsp}}... b){{nbsp}}the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c){{nbsp}}the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.<ref>''[[Miller v. California]]'' 413 U.S. 15 (1973) at 39</ref>

Pornography, except for child pornography, is in practice free of governmental restrictions in the U.S., though pornography about "extreme" sexual practices is occasionally prosecuted.<ref name="EB" /> [[Child pornography]] is not subject to the ''Miller'' test, as the Supreme Court decided in ''[[New York v. Ferber]]'' (1982) and ''[[Osborne v. Ohio]]'' (1990),<ref>''[[New York v. Ferber]]'', {{ussc|458|747|1982}}</ref><ref>''[[Osborne v. Ohio]]'', {{ussc|495|103|1990}}</ref> ruling that the government's interest in protecting children from abuse was paramount.<ref>''Ferber'', at 761</ref>{{sfn|Jasper|1999|p=51}} Personal possession of obscene material in the home may not be prohibited by law, as per ''[[Stanley v. Georgia]]'' (1969).<ref name=":8" />
== Freedom of the press ==
{{Further<!--Main is ONLY for summary-style overviews of a subarticle; Further is the correct template when "the section expounds a specific aspect of the topic instead of summarizing its article".-->|Freedom of the press in the United States}}

The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.<ref name="CornellFirstAmendmentOverview" /><ref name="McConnellNov2013">{{cite journal|last=McConnell|first=Michael W.|title=Reconsidering Citizens United as a Press Clause Case|journal=The Yale Law Journal|date=November 2013|volume=123 2013–2014|pages=266–529|url=http://www.yalelawjournal.org/essay/reconsidering-citizens-united-as-a-press-clause-case#_ftnref108|access-date=April 19, 2014}}</ref> In ''[[Lovell v. City of Griffin]]'' (1938),<ref>''[[Lovell v. City of Griffin]]'', {{ussc|303|444|1938}}</ref> Chief Justice [[Charles Evans Hughes]] defined "press" as "every sort of publication which affords a vehicle of information and opinion".<ref>''Lovell'', at 452</ref> [[Brown v. Entertainment Merchants Association#Opinion|This right has been extended to media]] including newspapers, books, plays, movies, and video games.<ref>{{cite web|url=https://www.nytimes.com/2011/06/28/us/28scotus.html?pagewanted=all&_r=1& |title=Justices Reject Ban on Violent Video Games for Children |first=Adam |last=Liptak |author-link=Adam Liptak |date=June 27, 2011 |work=The New York Times |access-date=April 19, 2013 |archive-date=March 31, 2019 |archive-url=https://web.archive.org/web/20190331114358/https://www.nytimes.com/2011/06/28/us/28scotus.html?pagewanted=all&_r=1& |url-status=live }}</ref> While it is an open question whether people who blog or use social media are journalists entitled to protection by [[Shield laws in the United States|media shield laws]],<ref>{{cite web|last=Mataconis|first=Doug|title=Bloggers, Media Shield Laws, And The First Amendment|url=http://www.outsidethebeltway.com/bloggers-media-shield-laws-and-the-first-amendment/|publisher=Outside The Beltway|access-date=August 9, 2013|date=May 28, 2013}}</ref> they are protected equally by the Free Speech Clause and the Free Press Clause, because both clauses do not distinguish between media businesses and nonprofessional speakers.<ref name="CornellFirstAmendmentOverview">{{cite encyclopedia|title=First Amendment: An Overview|url=https://www.law.cornell.edu/wex/first_amendment|encyclopedia=Wex Legal Dictionary / Encyclopedia|publisher=Legal Information Institute of the Cornell University|access-date=April 18, 2014}}</ref><ref name="McConnellNov2013" /><ref name="ECBbritannicaFA20140418" /> Justice [[Felix Frankfurter]] stated in a concurring opinion in another case succinctly: "[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it."<ref>{{cite web |title=Pennekamp v. Florida, 328 U.S. 331 (1946), at 364. Concurring opinion by Felix Frankfurter |url=https://supreme.justia.com/cases/federal/us/328/331/ |publisher=Justia US Supreme Court Center |access-date=October 24, 2020 |date=June 3, 1946}}</ref> In ''Mills v. Alabama'' (1943) the Supreme Court laid out the purpose of the free press clause: "... there is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs. ... the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials, and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve."<ref>{{cite web |date=May 23, 1966 |title=Mills v. Alabama, 384 U.S. 214 (1966), at 218-219 |url=https://supreme.justia.com/cases/federal/us/384/214/#218 |access-date=January 10, 2022 |publisher=Justia US Supreme Court Center}}</ref> Justice [[Lewis F. Powell Jr.|Lewis F. Powell]] clarifies in ''[[Branzburg v. Hayes]]'' (1972) that a claim for press privilege "should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."<ref>{{cite encyclopedia |title=Branzburg v. Hayes 408 U.S. 665 (1972) |encyclopedia=Encyclopedia of the American Constitution |publisher= |url=http://www.highbeam.com/doc/1G2-3425000283.html |access-date=April 19, 2013 |date=January 1, 2000 |url-status=dead |archive-url=https://web.archive.org/web/20130509085553/http://www.highbeam.com/doc/1G2-3425000283.html |archive-date=May 9, 2013}}</ref>

A landmark decision for press freedom came in ''[[Near v. Minnesota]]'' (1931),<ref>''[[Near v. Minnesota]]'', {{ussc|283|697|1931}}</ref> in which the Supreme Court rejected [[prior restraint]] (pre-publication censorship). In this case, the Minnesota legislature passed a statute allowing courts to shut down "malicious, scandalous and defamatory newspapers", allowing a defense of truth only in cases where the truth had been told "with good motives and for justifiable ends".{{sfn|Lewis|2007|p=43}} The Court applied the Free Press Clause to the states, rejecting the statute as unconstitutional. Hughes quoted Madison in the majority decision, writing, "The impairment of the fundamental security of life and property by criminal alliances and official neglect emphasizes the primary need of a vigilant and courageous press."{{sfn|Lewis|2007|pp=44–45}}
[[File:Daniel Ellsberg.jpg|right|thumb|The leak of the ''[[Pentagon Papers]]'' by [[Daniel Ellsberg]] (pictured here in 2018) led to ''[[New York Times Co. v. United States]]'' (1971), a landmark press freedom decision.]]

However, ''Near'' also noted an exception, allowing prior restraint in cases such as "publication of sailing dates of transports or the number or location of troops".{{sfn|Lewis|2007|pp=46–47}} This exception was a key point in another landmark case four decades later: ''[[New York Times Co. v. United States]]'' (1971),<ref>''[[New York Times Co. v. United States]]'', {{ussc|403|713|1971}}</ref> in which the administration of President [[Richard Nixon]] sought to ban the publication of the ''[[Pentagon Papers]]'', classified government documents about the Vietnam War secretly copied by analyst [[Daniel Ellsberg]]. The Court found that the Nixon administration had not met the heavy burden of proof required for prior restraint. Justice Brennan, drawing on ''Near'' in a concurrent opinion, wrote that "only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an evil kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order." Justices Black and Douglas went still further, writing that prior restraints were never justified.<ref>{{cite encyclopedia|url=http://www.highbeam.com/doc/1G2-3425001770.html|archive-url=https://web.archive.org/web/20130509092209/http://www.highbeam.com/doc/1G2-3425001770.html|url-status=dead|archive-date=May 9, 2013|title=New York Times Co. v. United States 403 U.S. 713 (1971)|first=Frederick |last=Schauer|date=January 1, 2000|encyclopedia=Encyclopedia of the American Constitution|publisher=|access-date=April 19, 2013}}</ref>

The courts have rarely treated content-based regulation of journalism with any sympathy. In ''[[Miami Herald Publishing Co. v. Tornillo]]'' (1974),<ref>''[[Miami Herald Publishing Co. v. Tornillo]]'', {{ussc|418|241|1974}}</ref> the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish,<ref>{{cite web|url=http://www.highbeam.com/doc/1P2-21201322.html|archive-url=https://web.archive.org/web/20130509083623/http://www.highbeam.com/doc/1P2-21201322.html|url-status=dead|archive-date=May 9, 2013|title=Dan Paul, 85, leading lawyer for press freedom|first=Dennis |last=Hevesi|date=February 2, 2010|work=The Boston Globe|publisher=|access-date=April 19, 2013}}</ref> establishing a corporation's right not to speak.<ref>{{Cite book |last1=Lee |first1=William E. |url=https://books.google.com/books?id=CkgrDwAAQBAJ&dq=%22Miami+Herald+Publishing+Co.+v.+Tornillo%22+corporation+right+not+to+speak&pg=PA294 |title=The Law of Public Communication |last2=Stewart |first2=Daxton R. |last3=Peters |first3=Jonathan |date=2019-07-06 |publisher=Taylor & Francis |isbn=978-1-351-69235-9 |language=en}}</ref>

Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a '''content-neutral basis'''. In ''[[Federal Communications Commission v. Pacifica Foundation]]'',<ref>''[[Federal Communications Commission v. Pacifica Foundation]]'', {{ussc|438|726|1978}}</ref> the Supreme Court upheld the [[Federal Communications Commission]]'s authority to restrict the use of "[[Decency|indecent]]" material in broadcasting.

State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional, such as n ''[[Grosjean v. American Press Co.]]'' (1936).{{sfn|Lewis|2007|p=46}} In ''Leathers v. Medlock'' (1991), the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers.<ref>''Leathers v. Medlock'', {{ussc|499|439|1991}}</ref> The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."<ref>''Leathers'', at 453</ref>

==Right to petition and freedom of assembly==

{{Further<!--Main is ONLY for summary-style overviews of a subarticle; Further is the correct template when "the section expounds a specific aspect of the topic instead of summarizing its article".-->|Right to petition in the United States|Freedom of assembly}}
[[File:Chief Justice Morrison Waite.jpg|thumb|Chief Justice [[Morrison Waite]] ruled in ''[[United States v. Cruikshank]]'' (1875) that the right of assembly was a secondary right to the right to petition.]]

The Petition Clause protects the right "to petition the government for a redress of grievances".<ref name="CornellFirstAmendmentOverview"/> The right expanded over the years: "It is no longer confined to demands for 'a redress of grievances', in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters."<ref name="Findlaw20121005" /> The right to petition the government for a redress of grievances therefore includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis.<ref name="ECBbritannicaFA20140418">{{cite encyclopedia|author=Eugene Volokh|title=First Amendment (United States Constitution)|url=https://www.britannica.com/EBchecked/topic/208044/First-Amendment|encyclopedia=Encyclopædia Britannica|access-date=April 18, 2014|date=January 8, 2014}}</ref> According to the Supreme Court, petitions on behalf≥ of private interests seeking personal gain<ref name="ReferenceB">{{ussc|name=Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.|365|127|1961}}</ref> and those calling for peaceful legislative change are also protected.<ref name="FACenter" />

The Petition Clause first came to prominence in the 1830s, when Congress established the [[gag rule]] barring anti-slavery petitions from being heard; the rule was overturned by Congress several years later. Petitions against the [[Espionage Act of 1917]] resulted in imprisonments. The Supreme Court did not rule on either issue.<ref name="Findlaw20121005">{{cite web|title=Findlaw Annotation 21—First Amendment—Rights of assembly and petition|url=https://constitution.findlaw.com/amendment1/annotation21.html#1|work=[[FindLaw]]|access-date=June 28, 2020|archive-url=https://web.archive.org/web/20201112021125/https://constitution.findlaw.com/amendment1/annotation21.html|archive-date=November 12, 2020}}</ref> Today, this right encompasses petitions to all three branches of the federal government—the Congress, the executive and the judiciary—and has been extended to the states through incorporation.<ref name="Findlaw20121005" /><ref name="FACenter">{{cite web|url=http://www.firstamendmentcenter.org/faq/frequently-asked-questions-petition|title=Frequently Asked Questions—Petition|publisher=First Amendment Center|access-date=April 19, 2013|archive-date=April 28, 2013|archive-url=https://web.archive.org/web/20130428020515/http://www.firstamendmentcenter.org/faq/frequently-asked-questions-petition|url-status=dead}}</ref> In ''[[Borough of Duryea v. Guarnieri]]'' (2011), the Supreme Court declared that the Free Speech Clause and the Petition Clause are mutually integral to the democratic process as both foster the exchange and expression of ideas.<ref name="Duryea">{{ussc|name=Borough of Duryea v. Guarnieri|volume=564|page=379|year=2011}}. {{usgovpd}}</ref> 

The right of assembly is the [[Individual and group rights|individual right]] of people to come together and collectively express, promote, pursue, and defend their collective or shared ideas.<ref>Jeremy McBride, Freedom of Association, in The Essentials of{{nbsp}}... Human Rights, Hodder Arnold, London, 2005, pp. 18–20</ref> This right is deemed equally important as those of free speech and free press, as observed by the Court in ''[[De Jonge v. Oregon]]'' (1937).<ref name="Findlaw20121005" /> The right of peaceable assembly was originally distinguished from the right to petition.<ref name="Findlaw20121005" /> In ''[[United States v. Cruikshank]]'' (1875),<ref>''[[United States v. Cruikshank]]'', {{ussc|92|542|1875}}</ref> the first case in which the right to assembly was before the Supreme Court,<ref name="Findlaw20121005" /> the court broadly declared the outlines of the right of assembly and its connection to the right of petition: "The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances."<ref>''Cruikshank'', at 552</ref>

Justice [[Morrison Waite]]'s opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions.<ref name="Findlaw20121005" /> An example of this is ''[[Hague v. Committee for Industrial Organization]]'' (1939), where it was decided that the freedom of assembly covered by the First Amendment applies to [[Forum (legal)|public forums]] like streets and parks.<ref>{{cite web|title=The Successes of the American Civil Liberties Union|url=https://www.aclu.org/successes-american-civil-liberties-union|publisher=American Civil Liberties Union|access-date=June 26, 2020|archive-url=https://web.archive.org/web/20231026145318/https://www.aclu.org/successes-american-civil-liberties-union|archive-date=October 26, 2023}}</ref><ref name="Findlaw20121005" /> In ''Hague'' the right of assembly was given a broad meaning, because the right of assembly can be used "for communication of views on national questions"<ref>{{cite web |title=Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at 516 |url=https://supreme.justia.com/cases/federal/us/307/496/ |publisher=Justia US Supreme Court Center |access-date=October 26, 2023 |archive-url=https://web.archive.org/web/20231026145634/https://supreme.justia.com/cases/federal/us/307/496/ |archive-date=October 26, 2023 |date=June 5, 1939}}</ref> as well as for "holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose."<ref>{{cite web |title=Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at 525 |url=https://supreme.justia.com/cases/federal/us/307/496/ |publisher=Justia US Supreme Court Center |access-date=October 26, 2023 |archive-url=https://web.archive.org/web/20231026145634/https://supreme.justia.com/cases/federal/us/307/496/ |archive-date=October 26, 2023 |date=June 5, 1939}}</ref>

==Freedom of association==

{{Further|Freedom of association#United States Constitution}}

Although the First Amendment does not explicitly mention freedom of association, the Supreme Court ruled in ''[[NAACP v. Alabama]]'' (1958) that this freedom was protected by the amendment and that privacy of membership was an essential part of this freedom.<ref>{{Cite journal |last=Batchis |first=Wayne |date=2012 |title=''Citizens United'' and the Paradox of "Corporate Speech": From Freedom of Association to Freedom of ''the'' Association |url=https://socialchangenyu.com/wp-content/uploads/2019/09/Wayne-Batchis_RLSC_36.1.pdf |journal=NYU Review of Law and Social Change |volume=36 |issue=5 |pages=5-55}}</ref> In ''[[Roberts v. United States Jaycees]]'' (1984), the Court stated that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends".<ref>''[[Roberts v. United States Jaycees]]'', {{ussc|468|609|1984}}</ref> In ''Roberts'' the Court held that associations may not exclude people for reasons unrelated to the group's expression, such as gender.<ref>{{cite web|url=https://www.questia.com/read/1P3-834011751|title=What is Really Wrong with Compelled Association?|author=Shiffrin, Seana Valentine|author-link=Seana Shiffrin|date=January 1, 2005|work=Northwestern University Law Review|via=|url-access=|access-date=}}{{dead link|date=July 2021}}</ref> 

However, in ''[[Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston]]'' (1995),<ref>''[[Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston]]'', {{ussc|515|557|1995}}</ref> the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view.<ref>{{cite encyclopedia|url=http://www.highbeam.com/doc/1G2-3425001252.html|archive-url=https://web.archive.org/web/20130509082442/http://www.highbeam.com/doc/1G2-3425001252.html|url-status=dead|archive-date=May 9, 2013|title=Hurley v. Irish-American Gay, Lesbian, And Bisexual Group of Boston 515 U.S. 557 (1995)|date=January 1, 2000|encyclopedia=Encyclopedia of the American Constitution|publisher=|access-date=April 13, 2013}}</ref> Likewise, in ''[[Boy Scouts of America v. Dale]]'' (2000),<ref>{{ussc|name=Boy Scouts of America v. Dale|530|640|2000}}</ref> the Court ruled that a New Jersey law, which forced the [[Boy Scouts of America]] to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.<ref>{{cite web|url=http://www.highbeam.com/doc/1G2-2587400073.html|archive-url=https://web.archive.org/web/20130509105313/http://www.highbeam.com/doc/1G2-2587400073.html|url-status=dead|archive-date=May 9, 2013|title=Boy Scouts of America v. Dale|date=January 1, 2006|work=Gender Issues and Sexuality: Essential Primary Sources|publisher=|access-date=April 13, 2013}}</ref>

==See also==
[[File:Newseum 5 Freedoms 1st Amendment.jpg|thumb|[[The Newseum]]'s depiction of the five freedoms guaranteed by the First Amendment in [[Washington, D.C.]]|alt=The Newseum]]{{div col|colwidth=30em}}
* [[Canadian Charter of Rights and Freedoms]]
* [[Censorship in the United States]]
* [[First Amendment audits]]
* [[Free speech zone]]
* [[Freedom of speech]]
* [[Government speech]]
* [[List of amendments to the Constitution of the United States]]
* [[List of United States Supreme Court cases involving the First Amendment]]
* [[Marketplace of ideas]]
* [[Military expression]]
* [[Photography Is Not a Crime]]
* [[Section 116 of the Constitution of Australia]]
* [[United States Postal Service]]
* [[United States free speech exceptions]]
* [[Williamsburg Charter]]
{{div col end}}

== Explanatory notes ==
{{notelist}}

==References==
=== Citations ===
{{Reflist|25em}}

=== General and cited references ===
* {{cite book|last=Abrams|first=Floyd|author-link=Floyd Abrams|title=Speaking freely|url=https://books.google.com/books?id=eRQIMWrCfhEC|access-date=April 4, 2013|date=April 4, 2006|publisher=Penguin|isbn=978-0-14-303675-3}}
* {{cite book|last=Beeman|first=Richard|author-link=Richard Beeman|title=Plain, Honest Men: The Making of the American Constitution|url=https://books.google.com/books?id=2eyCX5Vrn7wC|access-date=April 4, 2013|year=2009|publisher=Random House|isbn=978-1-58836-726-6}}
* {{cite book|first=Margaret C. |last=Jasper|title=The Law of Speech and the First Amendment|url=https://books.google.com/books?id=ITpDAQAAIAAJ|access-date=April 4, 2013|year=1999|publisher=Oceana Publications|isbn=978-0-379-11335-8}}
* {{cite book|first=William Edward|last=Nelson|title=Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830|url=https://books.google.com/books?id=64S-E0fRn4YC|access-date=April 19, 2013|year=1994|publisher=University of Georgia Press|isbn=978-0-8203-1587-4}}
* {{cite book|first=Martin L. |last=Newell|title=The Law of Libel and Slander in Civil and Criminal Cases: As Administered in the Courts of the United States of America|url=https://books.google.com/books?id=iXk9AAAAIAAJ|access-date=April 19, 2013|year=1898|publisher=Callaghan}}
* {{cite book|last=Lewis|first=Anthony|title=[[Freedom for the Thought That We Hate|Freedom for the Thought That We Hate: A Biography of the First Amendment]]<!--|commenting; requires URL: accessdate=April 4, 2013-->|year=2007|publisher=Basic Books|isbn=978-0-465-01819-2}}

==Further reading==
* {{cite book|last=Curtis|first=Michael Kent|title-link=Free Speech, "The People's Darling Privilege"|title=Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History|year=2000|publisher=[[Duke University Press]]|isbn=0822325292}}
* Daniel L. Dreisbach and [[Mark David Hall]]. ''The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding''. Indianapolis, IN: Liberty Fund Press, 2009.
* Daniel L. Dreisbach, Mark David Hall, and Jeffry Morrison. ''The Forgotten Founders on Religion and Public Life'' Notre Dame, IN: University of Notre Dame Press, 2009.
* [[Thomas I. Emerson]], "Toward a General Theory of the First Amendment", ''Yale Law Journal'', vol. 72, no. 5 (1963), pp.&nbsp;877–956. {{doi|10.2307/794655}}. {{JSTOR|794655}}.
* {{cite book|last=Godwin|first=Mike|author-link=Mike Godwin|year=2003|title=Cyber Rights: Defending Free Speech in the Digital Age|title-link=Cyber Rights: Defending Free Speech in the Digital Age|publisher=MIT Press|isbn=0262571684}}
* Peter Irons, ''A People's History of the Supreme Court''. New York: Penguin, 1999.
* {{cite book|first=Kembrew|last=McLeod|author-link=Kembrew McLeod|others=foreword by Lawrence Lessig|title=Freedom of Expression: Resistance and Repression in the Age of Intellectual Property|title-link=Freedom of Expression(R)|publisher=University of Minnesota Press|year=2007|isbn=978-0816650316}}
* Kabala, James S., ''Church-State Relations in the Early American Republic, 1787–1846''. London: Pickering and Chatto, 2013.
* Johnny Killian and George Costello (eds.) (2000). ''The Constitution of the United States of America: Analysis and Interpretation'',. [https://constitution.congress.gov/browse/amendment-1/ Current version] {{Webarchive|url=https://web.archive.org/web/20220409061757/https://constitution.congress.gov/browse/amendment-1/ |date=April 9, 2022 }}
* Nicholas P. Miller, ''The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State''. New York: Oxford University Press, 2012.
* {{cite book|last=Nelson|first=Samuel P.|title=Beyond the First Amendment: The Politics of Free Speech and Pluralism|title-link=Beyond the First Amendment|publisher=The Johns Hopkins University Press|year=2005|isbn=0801881730}}

==External links==
{{Spoken Wikipedia|First Amendment.ogg|date=June 30, 2006}}
{{sisterlinks|d=Q12616|c=Category:First Amendment to the United States Constitution|n=no|b=no|v=no|voy=no|wikt=First Amendment}}

* [https://www.law.cornell.edu/anncon/html/amdt1toc_user.html Cornell Law School—Annotated Constitution]
* {{webarchive |url=http://webarchive.loc.gov/all/20041016163435/http://www.firstamendmentcenter.org/speech/adultent/topic.aspx?topic=pornography |title=First Amendment Center—The First Amendment Library |date=October 16, 2004}}
* {{cite web|last=Ruane|first=Kathleen Anne|title=Freedom of Speech and Press: Exceptions to the First Amendment|work=Legislative Attorney|publisher=Congressional Research Service|date=September 8, 2014|url=https://fas.org/sgp/crs/misc/95-815.pdf|access-date=March 18, 2021}}
* {{cite web|last=Cohen|first=Henry|title=Freedom of Speech and Press: Exceptions to the First Amendment|publisher=[[Congressional Research Service]]|date=October 16, 2009|url=https://fas.org/sgp/crs/misc/95-815.pdf|archive-url=https://web.archive.org/web/20100208193354/https://fas.org/sgp/crs/misc/95-815.pdf|archive-date=February 8, 2010|access-date=January 1, 2012}}
* {{cite web|url=https://fas.org/sgp/crs/misc/95-815.pdf|title=Freedom of Speech and Press: Exceptions to the First Amendment|publisher=[[Congressional Research Service]]|archive-url=https://web.archive.org/web/20050924140611/https://fas.org/sgp/crs/misc/95-815.pdf|archive-date=September 24, 2005}} – Updated May 24, 2005

{{US Constitution}}
{{US1stAmendment Establishment Clause Supreme Court case law}}
{{US1stAmendment Free Exercise Clause Supreme Court case law}}
{{US1stAmendment Freedom of Speech Clause Supreme Court case law}}
{{US1stAmendment Freedom of the Press Clause Supreme Court case law}}
{{US1stAmendment Assemble and Petition Clause Supreme Court case law}}
{{Authority control}}


{{DEFAULTSORT:First Amendment To The United States Constitution}}
[[Category:First Amendment to the United States Constitution| ]]
[[Category:1791 in American politics]]
[[Category:1791 in American law]]
[[Category:United States Bill of Rights|01]]
[[Category:Christianity and law in the 18th century]]
[[Category:Freedom of religion in the United States]]
[[Category:Separation of church and state in the United States]]
[[Category:Edicts of toleration]]
[[Category:Amendments to the United States Constitution|01]]