Sunday, May 7, 2017

The First Amendment Explained

Source: Flickr

Everybody loves the First Amendment to the US Constitution it seems, regardless of whether you're a conservative or a liberal. But many people have the wrong interpretation of it, including both liberals and conservatives. A growing number of liberals today think free speech is only to cover speech they like, and conservatives for years have thought that the Establishment Clause is to protect Christianity only. They're both wrong.

So here I want to break down the First Amendment line by line to give a short synopsis of what each part really means.

Congress shall make no law respecting an establishment of religion, 

The very first part of the First Amendment is the Establishment Clause and this establishes the United States as a secular country. Meaning, the government, both federal and state, must not recognize any official religion by recognizing a "wall of separation" between church and state. This means no government can use tax dollars to fund or promote religious institutions or services and must remain neutral on matters of religion, and all laws must have a legitimate secular purpose. This means of course that it is unconstitutional to give Christianity a privilege over any other religion, or over no religion, in the government.

or prohibiting the free exercise thereof; 

Because the government must stay neutral on religious matters, it cannot prohibit the free exercise of religious practices, otherwise it will have to violate that neutrality. However, where ever secular law and religious tradition conflict, secular law must always win out. So if, for example, a religion condones child marriage and secular law prohibits it, then secular law wins. As long as secular law does not have the primary effect of inhibiting religion this relationship is justified under the First Amendment.

The Lemon v. Kurtzman holding illustrates this relationship beautifully:

"For a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must have a legitimate secular purpose, must not have the primary effect of either advancing or inhibiting religion, and also must not result in an excessive entanglement of government and religion."

or abridging the freedom of speech, 

So absolutely fundamental to the American experience, is the right of all people on US soil to be able to speak their opinions and ideas without fear of legal retribution or censorship by the government. There is no United States of America without freedom of speech. Freedom of speech entails freedom of religion. Without the former, you don't have the latter. It's also synonymous with freedom of thought, and freedom of expression. With some reasonable restrictions, like on inciting violence and certain privacy laws, the freedom of speech in the First Amendment has a wide range. What many people fail to remember is that freedom of speech is designed to protect the speech you don't like, because it's easy for anyone to support speech they do like. However, private institutions have the right to fire people who say things they disagree with or bar certain speech on their property. The government however cannot do these things — with a few exceptions. For example, if you're a public school teacher, you cannot teach your religion as fact to your students as that would be a government employee taking a stance on religion.

or of the press; 

The government cannot censor the press, in the way governments do in so many countries. Because the press has free speech, the government cannot ban critical reporting on what it does. If a news organization writes a critical article of the government or of any public figure, and if they feel they were lied about, then they can take the news organization to court and sue then for libel. Freedom of the press means the press can operate as a private enterprise with limited government control. But this freedom means tabloid magazines will be able to publish juicy gossip on celebrities, Nazi sympathizers will be allowed to publish newspapers declaring Aryan superiority, and Jihadists can publish magazines calling for a worldwide caliphate.  

or the right of the people peaceably to assemble, 

Being able to peacefully protest is also related to free speech, as it is a form of free expression. People have a right to peacefully protest the government's violations of rights, police misconduct, injustice, or assemble for any social or political causes they see fit. Protests may also require the use of a permit. One major controversy in the right to assemble is whether hate groups like the KKK or neo-Nazis have the right to march, especially in non-white areas. The courts have generally agreed that they do, but many cities will deny permits under the reason that such marches could incite violence. The most famous case of this was Smith v. Collin, where the National Socialist Party of America, a Nazi organization, won a case decided by the Supreme Court to march on Skokie Illinois, a predominantly Jewish suburb of Chicago. I know many people will find that appalling, as do I, but the right to peacefully assemble must protect those assembling for ideas you despise, otherwise free expression only exists for those who you agree with. This doesn't mean every hate group gets the right to march anywhere they want, or whenever they want. Cities can still bar them if they feel violence is likely.

and to petition the Government for a redress of grievances.

Many of our civil liberties guaranteed in the First Amendment and in the other amendments would not be possible if it weren't for the right of the people to petition the government regarding some perceived injustices. This includes the right to lobby the government, the right to file lawsuits, and the right to meet with government officials. Generally not considered as controversial as the Establishment Clause, this nevertheless makes upholding civil liberties possible. Without this right, the US government would be able to completely ignore any violations of civil liberties it wanted. A controversy I see is that since it allows people from corporations to lobby the government, because of their resources, they will be able to have undue influences over government officials. And today government law and policy is skewed in favor of giving corporations what they want, not the American people. A ban on lobbying could be unconstitutional.

The First Amendment, while not without its controversies, was truly revolutionary for its time. It established the first secular constitutional republic, and allowed people and the press to speak freely their ideas and protest and criticize the government in ways that were unthinkable in every country up until that point. There is a reason why it's the first amendment.

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