First Amendment: should it have limits?

The First Amendment provides that Congress makes no law respecting an establishment of religion or
prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition
the Government for a redress of grievances.

Some Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech & Freedom of the Press:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party
activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger”
standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court
viewed draft resistance as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The
New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without
risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military
involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the
presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B.
Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984
Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan.

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag.
This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing
the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids
government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on
Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them
to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon
their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist,
worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired
for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina
court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state
to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court
case established the “Lemon Test” for determining when a state or federal law violates the Establishment
Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially
supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions
in two cases involving the display of the Ten Commandments on public property. In the first case, Van
Orden v. Perry, the Supreme Court ruled that the display of a six-foot Ten Commandments monument at
the Texas State Capital was constitutional. In McCreary County v. ACLU, the U.S. Supreme Court ruled that
two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First
Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the
state and subpoenaed the NAACP for records including their membership list, the NAACP brought the
matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II
writing: “This Court has recognized the vital relationship between freedom to associate and privacy in
one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist
Church to the South Carolina State House, where they were arrested and convicted of breaching the peace.
The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on
the free speech, free assembly and freedom to petition of the students.

WHAT TO LIMIT?

- Hate speech
- Fake News
 - WHAT IS THE FIRST AMENDMENT?

It basically protects what the framers of the Constitution believed to be individuals unalienable rights
(natural rights) from the government regulations. They thought that our opinion and beliefs are the
product of reason, and the government cannot coerce or compel our opinion and beliefs in any way.
They are ours, even if they are unpopular. So, we as individuals have the freedom to think, workship,
believe and express our opinion and believed, unless they are likely or intended to cause imminent
violence.

James Madison said: “The rights of conscience and opinion must be equally and completely exempt from
government regulation”.

So it protects the freedom of speech, the press, assembly, petition and religion.

PROTECTED SPEECH:
Freedom of speech doesn’t just apply to the words that come out of your mouth. It applies to a number of
different forms of expression, including:

Written works
Online posts
Movies and television
Theater and dance
Art
Video Games
Political yard signs
Handing out flyers
Clothing
Symbolic speech, like burning a flag or wearing a black armband
The right not to speak, such as a refusal to say the pledge of allegiance
Donations of money to political campaigns

Obs.The First Amendment only protects your speech from government censorship. It applies to federal,
state, and local government actors. This is a broad category that includes not only lawmakers and elected
officials, but also public schools and universities, courts, and police officers. It does not include private
citizens, businesses, and organizations. This means that:

A private school can suspend students for criticizing a school policy.

A private business can fire an employee for expressing political views on the job.
A private media company can refuse to publish or broadcast opinions it disagrees with.

NOT PROTECTED SPEECH:

There are several categories of speech that are not protected by the First Amendment at all.

Child pornography
Commercial speech (Advertisements for products or services receive some First Amendment protection but not as
much as other forms of speech. False advertising can be regulated. Even truthful advertisements can be limited in
certain ways. For instance, regulations prohibiting advertising of certain products like alcohol, tobacco and gambling
in a way that attracts minors do not violate the First Amendment.)
Blackmail
Defamation (Defamation is false statements that harm another person’s reputation, including libel (generally
something written) or slander (something said). If you say or publish something false that harms the reputation of a
public figure such as a politician, celebrity, or business leader, in order to succeed in a lawsuit against you, they will
have to prove that you acted with actual malice: You knew the statement was false, or you acted with a reckless
disregard for the truth. If you say or publish something false that harms the reputation of a private figure, they will
have to prove that you acted negligently: You didn’t take reasonable care to find out the truth, such as by research
or fact-checking. This is much easier to prove than actual malice.)
Fighting words (The First Amendment does not protect words "that by their very utterance inflict injury or tend to
incite an immediate breach of the peace." This is a very narrow definition. Words that cause offense or emotional
pain are not fighting words. They must do more than that in order to fall into this unprotected category of speech.)
The First Amendment offers fairly broad protection to offensive, repugnant and hateful speech.
Incitement of imminent lawless action (The First Amendment does not protect speech that leads to imminent
lawless action.
This kind of speech has to be directed towards a specific person or group.
It has to be a direct call to commit immediate, lawless action.
There must be an expectation that the speech will in fact lead to lawless action.
A more general statement like “people should rise up one of these days” would not fall into this category of speech.)
National security (Speech can be restricted if it is intended only to harm the interests of the United States or aid our
enemies or if it poses clear threat to human lives. In these situations, the government cannot rely on vague claims of
danger and bears the burden of demonstrating the existence of a real harm or threat.)
Obscenity
Perjury
Plagiarism
Solicitations to commit crimes (Convincing someone else to commit a crime is not protected by the First
Amendment.)
True Threats (True threats are not protected by the First Amendment.
The Supreme Court has said that a statement can be a true threat if the speaker intended to place his victim in fear of
bodily harm or death, even if the speaker had no intent of actually carrying out the threat.
Different courts have different ways of weighing the speaker’s intent and the recipient’s reasonable belief something
was a threat, so whether something is ruled a true threat might depend on where you are.)

-SEPARATE POLITICAL VIEWS FROM CONSTITUTIONAL VIEWS

-BAKER REFUSES A CAKE TO A SAME SEX MARRIAGE

Jack Phillip said that he could make them a cake, or any other baked thing..

https://www.youtube.com/watch?v=GwmiZBeYjaA&ab_channel=TODAY – interview

other cases: https://www.washingtonpost.com/news/post-nation/wp/2015/01/22/this-colorado-baker-refused-

to-put-an-anti-gay-message-on-cakes-now-she-is-facing-a-civil-rights-complaint/
A Denver bakery has found itself at the center of an LGBT rights controversy. But this isn’t about another
bakery refusing to fulfill an order for a same-sex wedding. Instead, Azucar Bakery in Denver is the subject
of a Colorado civil rights investigation for declining to decorate a cake with an anti-gay message.
A customer, identified as Bill Jack, told reporters that he believes Azucar Bakery “discriminated” against
him “based on my creed,” which is Christian. He filed a complaint with the Colorado Civil Rights Division
some time last year, though according to his statement to reporters, Jack said he wouldn’t comment on the
specifics of the complaint. But the baker in question did.
Jack walked into Azucar Bakery last March and asked for two cakes, both in the shape of Bibles. That
wasn’t a problem for Marjorie Silva, the bakery’s owner. It was what Jack wanted her to write on the cake:
Anti-gay phrases including “God hates gays” and an image of two men holding hands, covered in a big, red
“X.”
“It’s unfair that he’s accusing me of discriminating when I think he was the one that is discriminating,”
Silva told NBC affiliate KUSA. She said she refused to inscribe the cakes with the requested messages and
soon after received notice from the state’s Department of Regulatory Agencies that she was the subject of a
religious discrimination complaint.
After initially declining to comment to reporters last week on the details of his complaint, Jack now says that
Silva mis-remembered the specific phrases he asked her to inscribe.
Here’s his side of the story, from World Magazine:
In an email to WORLD, he wrote that he requested two cakes in the shape of an open Bible. He
asked that the first cake show on one page, “God hates sin—Psalm 45:7,” and on the facing page,
“Homosexuality is a detestable sin—Leviticus 18:22.” He requested that the second cake have on
one page, “God loves sinners,” and on the facing page, “While we were yet sinners Christ died for
us—Romans 5:8.”
Jack added to World that he initially responded to media requests for comment with a “generic statement”
because of concerns that he would have “no recourse if misquoted or if my comments are taken out of
context,” following a “hatchet job” by a Denver television station that first picked up the story.
The purpose of his request, Jack explained to the evangelical publication, was to see if the Colorado Civil
Rights Commission would handle what World characterized as “discrimination against Christians” the same
as it had handled a previous charge that another Colorado bakery participated in “discrimination against
gays.”
Jack is a founder of Worldview Academy, a nondenominational Christian organization. In his bio on the
academy’s site, he describes himself as “an educator with ten years experience in public schools and 14
years with The Caleb Campaign, a creationist youth ministry.”
Silva told Denver’s Fox affiliate, KDVR, that she is a Christian and that her business “make(s) a lot of
Christian cakes.”

SOURCES:
- https://www.youtube.com/watch?v=pAxSYbHvuPw&ab_channel=NationalConstitutionCenter
- https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/264
https://constitutioncenter.org/education/classroom-resources-by-topic/introducing-the-first-amendment
https://www.freedomforuminstitute.org/first-amendment-center/first-amendment-faq/ - freedom forum
institute
- https://www.freedomforum.org/is-your-speech-protected-by-the-first-amendment/ - what is protected
in the freedom of speech
DEBATE https://www.youtube.com/watch?v=XquPE0FVLlU&ab_channel=NationalConstitutionCenter