THE PRINCIPLES OF THE FIRST AMENDMENT 1

The Principles of the First Amendment

Diamond Carroll

North Carolina Agricultural and Technical State University

Dr. Gary Guffey

10 October 2019
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The Principles of the First Amendment

The First Amendment to the United States Constitution is a change that everyone is

familiar with. Adopted in 1791, along with nine other amendments, the First Amendment

protects the freedom of speech, religion, and the press. While this amendment has been around

for a long time, the U.S. Supreme Court has often struggled to determine what types of speech is

protected, but it doesn’t stop the citizens of America from speaking their minds when needed.

With the First Amendment, freedom of press is one subject that comes into play. The

media is an ever-growing mass of communication that is not subjected to censorship by the

government. Meaning, the government does not have the right to block certain things released by

the press. Going back to colonial times, “There were laws in the United States restricting

freedom of the press for almost 30 years before the first newspaper was published” (Calvert,

Kozlowski, & Silver, 2018). There were laws that made it a crime to publish anything without

the approval from the government. Government censorship comes to mind. Seditious libel laws

were used to discipline those who would criticize the government in any way, no matter if it’s

true or not, which is what the courts looked at when the trial of John Peter Zenger came. Zenger

was a journalist for The New York Weekly, and he published several articles criticizing William

Cosby, a not-so-popular colonial governor. After Zenger was jailed (because he was under

seditious libel laws), the jury ignored the law and returned a verdict according to its conscience,

which is called jury nullification today.

Freedom of expression was different in the 18th century than it is today. In this particular

century, the Articles of Confederation was born. The Articles didn’t guarantee a freedom of

expression. “The individuals who drafted [The Articles of Confederation] did not believe such
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guarantees were necessary” (Calvert et al., 2018). This had led to the Bill of Rights; this had led

to a new constitution for the United States. After talks, revisions, and debating, a new First

Amendment was created. The portion that guaranteed freedom of expression was combined with

the amendment guaranteeing freedom of religion and freedom of assembly. “Congress shall

make no law respecting an establishment of religion… or abridging the freedom of speech, or of

the press; or the right… to assemble, and to petition the Government for a redress of grievances”

(Calvert et al., 2018). Freedom of expression in the 18th century meant that if one knew the

meaning intended by the creator of the First Amendment, then one would know what it means

today.

Freedom of expression today has been tried countless times. People exercising their First

Amendment rights have been censored, fined, and/or jailed. “First Amendment protection is not

limited to ‘pure speech’ - books, newspapers… rallies. It also protects ‘symbolic speech’ -

nonverbal expression whose purpose is to communicate ideas” (American Civil Liberties Union

Foundation, n.d.). An example of symbolic speech would be Tinker v. Des Moines. Students at a

public school in Des Moines, Iowa planned to wear black armbands as a silent protest against the

Vietnam War. When the principal became aware of the plan, he warned them that they would be

suspended if they wore the bands because it might cause a disruption in the learning

environment. However, some students didn’t listen and risked the chance of getting suspended.

The court ruled in favor of the students; the Court took the position that school officials could

not prohibit on the suspicion that the speech might disturb the learning environment.

The government can limit some protected speech by adding time, place and manner

restrictions. This is done by requiring permits for meetings, rallies, etc. “But a permit cannot be

unreasonably withheld, nor can it be denied based on the content of the speech. That would be
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what is called viewpoint discrimination” (American Civil Liberties Union Foundation, n.d.).

When a protest goes from speech to action, that’s when the government can intervene

aggressively. Political protesters have the right to picket, deliver any kind of necessary written

manner, chant and engage bystanders in debate. However, they do not have the right to block

building entrances or physically hassle people.

An example of this would be Edwards v. South Carolina. African-American high school

and college students walked in groups to the South Carolina state house grounds, which are open

to the general public. Their intention was to present a protest of grievances to the citizens and

legislative bodies of South Carolina. During the peaceful protest, the police arrested the students

after they did not obey an order to disperse. The students were then convicted of breach of the

peace. They argued that there wasn’t enough evidence of “the commission of the offense and that

they were thus denied one of the most basic elements of due process of law” (Edwards v. South

Carolina, 1963). The outcome came to be the court reversing the criminal convictions of the

African-American students. It was clear that in arresting, imprisoning, and punishing the students

under the circumstances disclosed by the record, the state violated the students’ constitutionally

protected rights of freedom to petition for redress of their grievances, free speech, and free

assembly.

Profanity is used a lot nowadays. Both privately and publicly. It seems as if it has become

a second language. However, profanity is not always protected speech. “Certain categories of

speech are not entitled to First Amendment protection, including fighting words, true threats and

incitement to imminent lawless action” (Hudson, 2011). If profanity is used in a face-to-face,

personally abusive manner that provokes another, leading to a violent reaction by that particular

person, then it’s probably not protected by the First Amendment. Overall, while one has the right
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to use profane words in public, “self-censorship” should be presented when communicating with

others.

Using the middle finger is a free, yet offensive, form of speech, and there is a right that

one can give the finger gesture to a police officer. There have been many cases that involved a

citizen expressing their frustrations to a police officer by flipping them off. For instance, a

woman in Michigan, Debra Cruise-Gulyas, was pulled over for speeding. After the police

officer, Officer Matthew Minard, drove away, Cruise-Gulyas made the gesture towards him.

Clearly not entertained, Minard pulled Cruise-Gulyas over again and rewrote the ticket for

speeding, to which she sued and argued that she has the right to wiggle whatever finger she

wanted at the police. The U.S. Court of Appeals for the 6th Circuit agreed. “‘Any reasonable

officer would know that a citizen who raises her middle finger engages in speech protected by

the First Amendment,’ [Judge Jefferey] Sutton wrote” (Schwartz, 2019). After the ruling, it was

made clear that one can make that kind of gesture towards a police officer, if needed. “The First

Amendment protects a wide range of symbolic speech, including marching, wearing armbands,

and even making expressive gestures” (Feldman, 2013). On the other hand, giving a middle

finger to a person who is not a law enforcer in the process of a face-to-face and heated argument

might take place outside the area of the First Amendment protection under the fighting words

doctrine (a legal principle that allows prior censorship of words that create present danger of

provoking an audience to violence).

As citizens of America, we have the right to criticize the government and press for

change. “The right to discuss, criticize, and oppose the government is central to people’s political

philosophy in the United States” (Calvert et al., 2018). The right to speak out against the

government is the ultimate freedom. Sadly, those who run the government doesn’t seem to like
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the idea of this right, especially if that speech challenges its power, reveals its dishonesty,

encourages the citizens to neglect against the government’s many malpractices. President Trump,

for example, has shown to be less accepting of those who disagrees with him, notably when they

exercise their right to criticize the government. Whether through word-of-mouth, or the media,

criticizing the government cannot be taken away.

While the First Amendment provides that Congress shall make no law abridging the

freedoms of speech and press, its terms say nothing about actions made by state or local

governments. Meaning, the First Amendment does not prohibit state or local government

officials from abridging people’s speech and press rights. However, the case Gitlow v. New York

had changed that. The case involved the prosecution of a socialist Benjamin Gitlow for printing a

document called The Left-Wing Manifesto. It appeared that the First Amendment was beside the

point because it was a New York state law under which Gitlow was indicted, not an act of

Congress. “What the high court did… process of law [emphasis added]” (Calvert et al., 2018).

Taking into notice, the 14th Amendment imposes what states cannot do. The importance of the

ruling in Gitlow is that the high court acknowledged that the Bill of Rights places limitations on

the actions of states and local governments. Gitlow states that freedom of speech is protected by

the 14th Amendment, which is also known as incorporation doctrine. “The free speech… not just

to ‘Congress’” (Calvert et al., 2018). Today, most rights in the Bill of Rights are protected via

the 14th Amendment from conflict by states and cities as well as the federal government. This

marked the start of realization of a full measure of civil liberties for the citizens of the United

States.

To conclude, even though the Supreme Court often struggles to determine what rights are

protected, it doesn’t stop the citizens of America from speaking their minds. Everyone has basic
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rights under the U.S. Constitution. From the freedom of speech, to the freedom to peacefully

protest, to the freedom of the press, no one can be denied of their legal rights.
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References

American Civil Liberties Union Foundation. (n.d.). Freedom of Expression. Retrieved October 9,

2019, from https://www.aclu.org/other/freedom-expression

Calvert, C., Kozlowski, D. V., & Silver, D. (2018). Mass Media Law. New York, NY: McGraw-

Hill Education

Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697, 1963 U.S. LEXIS 2050

(Supreme Court of the United States February 25, 1963, Decided). Retrieved

from https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3S4X-

H5C0-003B-S39D-00000-00&context=1516831

Feldman, A. E. (2013, January 11). Is Middle Finger Protected by the Constitution? Retrieved

October 9, 2019, from https://constitutioncenter.org/blog/is-middle-finger-protected-by-the-

constitution.

Hudson, D. L. (2011, October 6). Remember Profanity Isn't Always Protected Speech. Retrieved

October 9, 2019, from https://www.freedomforuminstitute.org/2011/10/06/remember-profanity-

isnt-always-protected-speech/

Schwartz, M. S. (2019, March 15). Police Officer Can't Pull Over Driver for Giving Him the

Finger, Court Rules. Retrieved October 9, 2019, from

https://www.npr.org/2019/03/15/703665710/police-officer-cant-pull-over-driver-for-giving-him-

the-finger-court-rules