Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the People peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment to the U.S. Constitution, which was adopted in 1791, protects the core liberties of a free society: freedom of conscience, freedom of expression, the right to criticize the government, and the right to participate in the political process. It is one of the most eloquent, and most important, provisions of the Constitution.
Unfortunately, the First Amendment is neither self-defining nor self-enforcing. What is an "establishment of religion"? What constitutes the "free exercise" of religion? What is "freedom of speech"? What is "freedom of the press"? What does the right "peaceably to assemble" mean? What does the right to "petition the Government for a redress of grievances" mean? While these words and phrases sound beautiful, they are subject to a multitude of meanings and interpretations, which have challenged and perplexed courts for more than a century. Indeed, the First Amendment repeatedly has been the subject of court cases, often very controversial, aimed at defining and clarifying what these terms mean in practice and what kinds of conduct they do and do not protect from government control and oppression.
For a list of important U.S. Supreme Court cases involving the First Amendment, see here (from Wikipedia).
For general resources and discussion about the First Amendment, see the First Amendment Center.
The U.S. Supreme Court has addressed First Amendment issues in three recent cases: Snyder v. Phelps (2011), McCullen v. Coakley (2014), and Town of Greece v. Galloway (2014).
Snyder v. Phelps
The issue in this case was whether an extremist church group who staged a demonstration in connection with the funeral of a soldier could be sued in tort for emotional distress damages. The Supreme Court said no, ruling that the church group's activities were fully protected by the First Amendment. This case represents an important statement about the scope of First Amendment protections for unpopular and hurtful political speech.
The Supreme Court summarized the facts of the case as follows:
Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder's father selected the Catholic church in the Snyders' hometown of Westminster, Maryland, as the site for his son's funeral. Local newspapers provided notice of the time and location of the service.
Phelps became aware of Matthew Snyder's funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder's funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You."
The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing.
The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.
Matthew Snyder's father then sued Phelps and Westboro Baptist Church in federal district court in Maryland, asserting various state law causes of action, including defamation, intentional infliction of emotional distress, and civil conspiracy. The district court dismissed some of the claims and a jury trial was held. The jury found for the father and awarded $2.9 million in compensatory damages and $8 million in punitive damages (which the district court reduced to $2.1 million). Phelps appealed, arguing that the church group's activities were protected by the First Amendment, and the U.S. Court of Appeals for the Fourth Circuit agreed and reversed the judgment below. Snyder's father then appealed to the Supreme Court, which affirmed the Fourth Circuit's decision.
In its opinion (written by Chief Justice Roberts and joined by all justices except Justice Alito), the Supreme Court emphasized the broad scope of First Amendment protections for political speech: "The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. . . . That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. . . . Accordingly, speech on public issues occupies the highest rung on the hierarchy of First Amendment values, and is entitled to special protection."
The Court then explained that "[d]eciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record." Furthermore, "[t]he arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."
Applying this analytical framework to the facts at hand, the Court found that the Westboro church group's speech (the offensive placards) "plainly relates to broad issues of interest to society at large, rather than matters of purely private concern. . . . While these messages may fall short of refined social or political commentary, the issues they highlight -- the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy -- are matters of public import." Moreover, "Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a special position in terms of First Amendment protection." "Simply put, the church members had the right to be where they were." "And there is no indication that the picketing in any way interfered with the funeral service itself." Consequently, the speech was protected by the First Amendment.
Importantly, the Court noted that "[t]he record confirms that any distress occasioned by Westboro's picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. . . . It was what Westboro said that exposed it to tort damages." This violated the First Amendment, since "speech cannot be restricted simply because it is upsetting or arouses contempt." Indeed, "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This means that "in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate 'breathing space' to the freedoms protected by the First Amendment."
In sum, the Supreme Court ruled in favor of the church group, whose demonstration was fully protected by the First Amendment and therefore could not be the basis for a tort suit for damages.
McCullen v. Coakley
The issue in this case was the validity of a 2007 Massachusetts law making it unlawful to stand on a public sidewalk within 35 feet of the entrance to an abortion clinic. The law was challenged on First Amendment grounds by a group of persons "who approach and talk to women outside such facilities, attempting to dissuade them from having abortions," which they refer to as "sidewalk counseling." These persons were not protesters and did not express opposition to abortion through signs and slogans and aggressive confrontations. Rather, they sought to engage women on a one-to-one basis, in a calm and supportive manner, and to provide information and literature about abortion alternatives. The question before the Supreme Court was whether the Massachusetts law unconstitutionally abridged their First Amendment right to free speech. The Court said yes and nullified the law.
The Supreme Court's decision (written by Chief Justice Roberts and joined or concurred in by all justices) began by explaining that although the Massachusetts law on its face did not regulate speech, "it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny."
Public fora, like sidewalks, "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." The Court explained that the First Amendment's limitation on the power of government to restrict speech because of its content, message, or subject matter "applies with full force in a traditional public forum." Nevertheless, even in a public forum, the First Amendment permits the government to impose "reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."
The first question in the McCullen case, therefore, was whether the purpose of the Massachusetts law was to regulate the content of the sidewalk counselors' speech or the time, place, and manner of their speech. The Court found that the law was not aimed at restricting the speech of abortion opponents and was "content neutral," even if the mandatory buffer zones had the "inevitable effect of restricting abortion-related speech more than speech on other subjects." The Court explained that "a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics." In this case, the Court accepted the state's position that the purpose of the law was to promote public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways. The Court thus concluded "that the Act is neither content nor viewpoint based and therefore need not be analyzed under strict scrutiny."
The next question, then, was whether the law was a valid "time, place, manner" regulation of speech. Such a regulation "must be narrowly tailored to serve a significant governmental interest" and "must not burden substantially more speech than necessary to further the government's legitimate interests." The Court explained that "[t]he tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency."
In this case, the Supreme Court found that "the buffer zones impose serious burdens on petitioners' speech." The Court noted that one-on-one communication "is the most effective, fundamental, and perhaps economical avenue of political discourse" and that "handing out leaflets in the advocacy of a politically controversial viewpoint . . . is the essence of First Amendment expression" and that "no form of speech is entitled to greater constitutional protection." Ultimately, the Court concluded that "[t]he buffer zones burden substantially more speech than necessary to achieve the Commonwealth's asserted interests." However, the Court did not hold that all regulations of speech around abortion clinics would be unconstitutional. On the contrary, according to the Court, "the Commonwealth has available to it a variety of approaches that appear capable of servings its interests, without excluding individuals from areas historically open for speech and debate." The state was free to pass new legislation that was more narrowly tailored.
Town of Greece v. Galloway
Town of Greece involved the establishment clause of the First Amendment. The question presented was "whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer." The Supreme Court said no, relying on prior precedent, Marsh v. Chambers (1983), to conclude that the prayer did not violate the First Amendment.
The basic facts of the case were as follows:
Greece, a town with a population of 94,000, is in upstateNew York. For some years, it began its monthly townboard meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Aubergerwould invite a local clergyman to the front of the room todeliver an invocation. After the prayer, Auberger would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.
The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in alocal directory until she found a minister available for that month’s meeting. The town eventually compiled a list ofwilling “board chaplains” who had accepted invitationsand agreed to return in the future. The town at no pointexcluded or denied an opportunity to a would-be prayergiver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in townwere Christian; and from 1999 to 2007, all of the participating ministers were too.
Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. . . .
Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting,Galloway admonished board members that she found the prayers “offensive,” “intolerable,” and an affront to a “diverse community.” After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation.
In 2008 Galloway and Stephens brought suit against the town in federal district court, alleging that the prayers violated the establishment clause by preferring Christianity over other religions. Interestingly, "[t]hey did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumenical' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief." The district court upheld the prayer practice, and the plaintiffs appealed. The U.S. Court of Appeals for the Second Circuit ruled in their favor, finding that the prayers in their totality conveyed the message that Greece was endorsing Christianity. The town then appealed to the Supreme Court, which reversed the court of appeals and ruled that the prayers did not violate the First Amendment.
In its decision (written by Justice Kennedy and joined or concurred in by Justices Roberts, Alito, Scalia, and Thomas, with Justices Breyer, Kagan, Ginsburg, and Sotomayor dissenting), the Supreme Court relied on its previous decision in Marsh v. Chambers, which held that the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds did not violate the establishment clause of the First Amendment.
As the Court explained, the Marsh decision "concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause." The Court noted that the very first Congress, which had adopted the First Amendment, "made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time." The Court further noted that legislative prayer had been the consistent practice of the majority of states. Quoting Marsh, the Court concluded: "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."
The issue in the case at bar, therefore, was "whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures." The Court said that it did, despite the predominately Christian content of the prayers. "The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized." According to the Court, "[t]hat nearly all the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths." The town was under no obligation to identify and promote a "diversity" of religious views.
But this does not mean that any "legislative prayer" is permitted under the First Amendment. According to the Court, such prayers are allowed, "provided there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." Moreover, the government may not prescribe or proscribe the content of the prayers. As the Court explained, "[o]nce it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian." Although such prayers may upset certain listeners, "[o]ur tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith." In Justice Kennedy's view, "[o]ffense . . . does not equate to coercion" and "the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree." In short, the First Amendment does not require that the prayers be stopped simply because someone is offended. Consequently, "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation."