Freedom of Expression
It's no coincidence that the First Amendment appears at the top of the list. The framers believed that free speech, free religious expression, and a free press were critical to democracy, and an essential component of liberty. The First Amendment provides some of our most cherished freedoms.
Freedom of Religion
The First Amendment begins with the following: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” During colonial times, several colonies had official churches, which citizens were required to attend. In fact, a few of the colonies were quite intolerant of minority religions. However, Madison, Jefferson, and other Founding Fathers believed that there should be complete separation between church and state.
The First Amendment does two things: It prohibits the government from creating an “official” religion (establishment clause), and prevents the government from prohibiting the practice of any religion (free exercise clause). Over the years, the Supreme Court has interpreted the establishment clause to mean that the federal and state governments cannot set up a church, give preference to one religion over another, participate in the affairs of religious organizations, or punish individuals because of their religious beliefs. The issue of prayer in public schools is an example of the difficult application of the First Amendment to everyday scenarios, because some people argue it violates the establishment clause.
On the other hand, the free exercise clause prevents the government from restricting religious practices. Broadly speaking, the government cannot ban religious practices or interfere with citizens' religious beliefs. This, too, can sometimes lead to murky public policy decisions. The courts have ruled that children cannot refuse certain types of medical vaccinations, even if it goes against their religious beliefs, arguing that it would jeopardize public safety. In 1993, Congress passed the Religious Freedom Restoration Act, which requires federal, state, and local governments to accommodate religious conduct in the least restrictive manner possible.
In the summer of 2003, Alabama Supreme Court Chief Justice Roy Moore created a national stir when he refused a federal court order to remove a 5,300-pound stone engraving of the Ten Commandments from a state judicial building. (Later, Moore was removed from the bench by a Court of the Judiciary.) It wasn't Moore's first brush with controversy; eight years earlier, the American Civil Liberties Union (ACLU) had sued him for posting the Ten Commandments in his courtroom.
Freedom of the Press
At the time of the framing of the Constitution, freedom of the press referred to newspapers and pamphlets. Today, it applies to multiple media — television, radio, Internet, magazines, e-mail, billboards, and so on. The framers believed that a free press was essential to good government, and that the press, in effect, acted as a “super-check” on all three branches of government.
Over the years, the Supreme Court has interpreted freedom of the press broadly, putting few restrictions on the media. In 1971, the Supreme Court denied President Nixon an injunction against the New York Times from publishing a classified report (which it had obtained from a disgruntled former Defense Department employee) that detailed the role of the United States in the Vietnam War. The court ruled that such an injunction would violate the First Amendment.
Freedom of Speech
The right to free speech has been a balancing act between legitimate expression and public safety. Is there an absolute right to free speech, or may the government curtail certain types of speech and expression? In a landmark Supreme Court case in 1919, legendary justice Oliver Wendell Holmes created the “clear and present danger test” for free speech. The doctrine allows the government to curtail or limit speech if it can demonstrate that the speech represents a clear and present danger to public safety. To make his point, Holmes used the example of shouting “fire” in a public theater when in fact there was no fire. Such speech would not be protected under the clear and present danger test.
The courts have been unwilling to extend constitutional protection to speech that is considered slanderous or obscene. Defining and regulating obscene speech has been particularly difficult for the courts, as Supreme Court Justice Potter Stewart all but admitted when he wrote in a 1964 decision that, although he couldn't define obscenity, “I know it when I see it.”
