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The US Constitution grants enumerated powers to the central government. The drafters believed enumerating the powers limited the government. This was the argument Federalists made based upon an accepted rule for interpreting legal documents: Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). With that principle in mind, the government could not exercise power over any subject not listed in Article I, Sec. 8.
The Anti-Federalists did not wish to leave protection of inalienable natural rights protected by a legal maxim. During the debates over ratification of the Constitution, they expressed concern about the lack of specified limits. These concerns resulted in the first ten amendments, the Bill of Rights, to specify areas outside federal authority and define citizen rights in other areas. The First Amendment restricts federal action in the areas of religion, speech, and press.[1] The First Amendment restricts government action interfering with speech. It does not affect the actions of private organizations in keeping with a First Amendment principle of freedom of association.
The First Amendment to the US Constitution
“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 does not grant rights, but rather says “Congress shall make no law…” restricting government interference with certain rights. This is consistent with the philosophy of the Declaration of Independence that government does not grant natural, inalienable rights, but rather government is formed to protect those rights.
Freedom of Religion
Many colonists came to America to escape religious persecution in England and elsewhere. The First Amendment has two clauses arising from that experience, The Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the central government from officially sanctioning a specific religion. The Free Exercise Clause prohibits the central government from interfering with the practice of religion.[2]
This makes the United States different from many nations around the globe. There is an official religion in England (Anglican). Many countries are founded upon a specific religion (Muslim theocracy). There remain communist countries such as China and Cuba, where the practice of religion in any form is severely restricted.
Thomas Jefferson recognized the importance of America’s religious freedom this way:
“among the inestimable of our blessings, also, is that …of liberty to worship our Creator in the way we think most agreeable to His will; …”
The term “religious liberty” embraces the overall First Amendment religion concepts. Religious liberty is more than going to the church of your choice. It is the right to live your life in a way consistent with your moral code without government interference.
Freedom of Speech
The First Amendment’s Free Speech Clause prohibits Congress from limiting the manner in which individuals express themselves. This not only applies to written and spoken words, but also to symbolic expressions such as art and music. Free speech includes demonstrative expressions of ideas such as symbolic armbands to protest a war or burning the US flag as a form of political protest.
Freedom of speech is not without its limitations. While Congress may not limit speech when it comes to expressing political thoughts and ideas, the First Amendment does not constitutionally protect all speech.
The best example of unprotected speech is falsely yelling “fire” in a crowded theater. There can be government sanctions for false speech defined as defamation or libel. Generally, the government may not restrict speech that is either truthful or expresses an opinion.
Freedom of the Press
When the Bill of Rights was ratified, the press was newspaper and books. This was the case for nearly 100 years until electronic communications became accessible to the general population. The adaptation of freedom of the press as communications media grew in form demonstrates how 200-year-old constitutional principles apply to a changed world.
First Amendment principles cover radio, television and the internet. This has not been without ongoing struggles. Even today, concepts like the “Fairness Doctrine” remain in debate about government control of electronic communications media. Proposals in Congress concerning internet regulation[3] are pending that bring technological innovation into conflict with Free Speech principles.
The First Amendment’s Free Press Clause has given rise to important concepts including a reporter’s privilege to protect his sources, and limits on government regulating information prior to its publication, banning “prior restraint”.
Freedom of Assembly
The government may not limit people from gathering to conduct peaceable meetings for any lawful purpose. The Supreme Court has held that there may be reasonable restrictions as to “time, place and manner” regarding such meetings, such as permits or fees as long as such restrictions do not act to actually prohibit a gathering. This is the freedom to peaceably assemble.
Among the complaints listed in the Declaration of Independence was the manner in which King George responded to colonial grievances:
“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
Drafters of the First Amendment had this experience in mind in placing the freedom to petition the government for redress of grievances as the final protection in the First Amendment. Largely ignored, this Americans have allowed this guarantee to become vestigial, something that should not happen to any word of the Constitution.
Freedom of Expression
Taken together, the First Amendment’s limits on government action provide Americans with the most liberal Freedom of Expression anywhere in the world. This freedom is written into the Constitution, but the roots are inNatural Law, the legal basis the Founders looked to for establishing the United States.
[1] The Bill of Rights placed limits on federal authority. Note Amendment I begins “Congress shall make no law…” The Supreme Court has interpreted the Fourteenth Amendment to extend much of the Bill of Rights to actions by state governments as well.
[2] There had been a history of support for specific religions by colonial and state governments. Hence, the First Amendment restrictions referred only to actions by the national Congress.
[3] The ease of copying and republishing materials protected by copyright has given rise to proposals such as theStop Online Piracy Act (SOPA) and Protect IP Act (PIPA). While having the goal of protecting copyright owners, opposition is based upon interference with First Amendment principles.
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