The First Amendment
The First Amendment states “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.”
Awesome, but.
- Government cannot establish any national religion or prohibit people from practicing their religion of choice. That’s all fine and good, but what about when the practice of said religion interferes with laws designed to protect people or when it interferes with another person’s rights? The answer is that sometimes it is more important to be able to practice your religion freely and other times, other rights of people/government are more important. In the case of human sacrifice, deciding which side trumps is pretty easy. It isn’t ok to violate the right to life because of your religion. Life > Religion. But where does the line become blurred? Let’s take a look at the US Supreme Court case of Employment Division v. Smith (1990). In this case, two members of a Native American Church were fired from their jobs because they had ingested peyote as part of a church ritual. At the time, this drug was illegal in the state of Oregon and the law did not contain an exception for religious use. The two men applied for, and were denied, unemployment benefits because using peyote was a crime.
In the end, the Supreme Court decided that even though states have the authority to accommodate otherwise illegal acts, they don’t have to when they can show that something is justifiably prohibited AND that it is applied equally to everyone. That is, the law cannot target a specific religious group specifically and the effect of the law on religion is incidental in nature. The majority opinion was written by none other than Justice Scalia, the conservative pillar of the court. The Court held that this situation which limited the free exercise clause was preferable to the anarchy that would result from "a system in which each conscience is a law unto itself."
- Government cannot abridge the freedom of speech (whose legal definition has been defined to include symbolic speech). Or can they? Limitations of speech are actually quite numerous and include clear and present danger, fighting words, libel and/or slander, conflict with other legitimate interests, and time/place/manner. You do not have a constitutional right to say things to provoke violence or illegal action (as in Brandenburg v. Ohio (1969), where Justice Holmes compared this kind of speech to falsely shouting “Fire!” in a crowded theater). You do not have a constitutional right to say things to others which are understood to be “fighting words” and result in violence. You do not have a constitutional right to make false or misleading statements about other people that defame them or damage their reputation. You do not have a constitutional right to obscene language or topics in any audience, particularly in front of minors (see Miller v. California (1973), among others). You do not have a constitutional right to speech which is prohibited for legitimate social or governmental interests, for instance, gag orders on trial participants or giving away information that could pose a national security threat. And finally, you don’t have the constitutional right to speech whenever or wherever you want, which mostly manifests itself in the form of noise regulations or permit requirements for protests to as not to endanger the safety of participants or obstruct flow of traffic. Phew! You get all that? All of these exceptions are well documented in Supreme Court cases.
- The press. The press is “free”, is it not? Sure, especially when you consider the relative freedom from censorship the press enjoys here in the US compared with most other countries (even democracies). But again, the Supreme Court has recognized certain limits. The press is also barred from defamation, which for the written word, is libel. There are also limits imposed on the protections which reporters and news organizations can provide for sources. If a source violated a federal law in giving information, the court can subpoena the journalist to give up the name of the source (see Branzburg v. Hayes (1972)). Material can also be barred from print if it is deemed obscene.
-Government must recognize the right of the people to peacefully assemble. However, authorities are allowed to require a permit for large rallies or demonstrations, as long as the requirements to obtain one are general. The Supreme Court also recognizes that the right to peacefully assemble must be balanced with property rights. In State v. Schmid (1980), the court identified three factors which must be considered; the nature, purpose and primary use of such private property, the extent and nature of the public's invitation to use that property, and the purpose of the expressive activity undertaken on such property in relation to both the private and public use of the property. So you can’t assemble wherever you want, whenever you want, or for however long you want. Sorry.
- Government must provide a way for you to petition them for redress of grievances. You can complain to the government and you can sue them. But that doesn’t mean they have to listen. There is absolutely no requirement that the government even consider your petition, only that you have the right to have one. In Minnesota Board for Community Colleges v. Knight (1984), the court stated “Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.” This was earlier affirmed in Smith v. Arkansas State Highway Employees (1979).