Separation of church and state in the United States
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"Separation of church and state" (sometimes "wall of separation between church and state") is a phrase used by Thomas Jefferson and others expressing an understanding of the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution of the United States. Since the First Amendment clearly places the restrictions solely on the state, some argue a more correct phrase would be the "separation of state FROM church". Either way, the "separation" phrase has since been repeatedly used by the Supreme Court of the United States.
The First Amendment to the United States Constitution provides that and Article VI specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The modern concept of a wholly secular government is sometimes credited to the writings of English philosopher John Locke, but the phrase "separation of church and state" in this context is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper.
Echoing the language of the founder of the first Baptist church in America, Roger Williams—who had written in 1644 of "[A] hedge or wall of separation between the garden of the church and the wilderness of the world"—Jefferson wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."[1]
Jefferson's metaphor of a wall of separation has been cited repeatedly by the U.S. Supreme Court. In Reynolds v. United States (1879) the Court wrote that Jefferson's comments "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment." In Everson v. Board of Education (1947), Justice Hugo Black wrote: "In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state."[2]
However, the Court has not always interpreted the constitutional principle as absolute, and the proper extent of separation between government and religion in the U.S. remains an ongoing subject of impassioned debate.[3][4][5][6]
Contents
[hide]- 1 Early history
- 2 The U.S. Constitution
- 3 The Treaty of Tripoli
- 4 Interpretive controversies
- 5 See also
- 6 References
- 7 Bibliography
- 8 External links
Early history[edit]
Many early immigrant groups traveled to America to worship freely, particularly after the English Civil War and religious conflict in France and Germany.[7] They includednonconformists like the Puritans, who were Protestants fleeing religious persecution from the Catholic King of England. Despite a common background, the groups' views onreligious toleration were mixed. While some such as Roger Williams of Rhode Island and William Penn of Pennsylvania ensured the protection of religious minorities within their colonies, others like the Plymouth Colony and Massachusetts Bay Colony had established churches. The Dutch colony of New Netherland established the Dutch Reformed Church and outlawed all other worship, though enforcement was sparse. Religious conformity was desired partly for financial reasons: the established Church was responsible forpoverty relief, putting dissenting churches at a significant disadvantage.
Former state churches in British North America[edit]
Protestant colonies[edit]
- The colony of Plymouth was founded by Pilgrims, English Dissenters or Separatists, Calvinists.
- The colonies of Massachusetts Bay, New Haven, and New Hampshire were founded by Puritan, Calvinist, Protestants.
- New Netherland was founded by Dutch Reformed Calvinists.
- The colonies of New York, Virginia, North Carolina, South Carolina, and Georgia were officially Church of England.
Catholic colonies[edit]
- When New France was transferred to Great Britain in 1763, the Catholic Church remained under toleration, but Huguenots were allowed entrance where they had formerly been banned from settlement by Parisian authorities.
- The Colony of Maryland was founded by a charter granted in 1632 to George Calvert, secretary of state to Charles I, and his son Cecil, both recent converts to Catholicism. Under their leadership many English Catholic gentry families settled in Maryland. However, the colonial government was officially neutral in religious affairs, granting toleration to all Christian groups and enjoining them to avoid actions which antagonized the others. On several occasions low-church dissenters led insurrections which temporarily overthrew the Calvert rule. In 1689, when William and Mary came to the English throne, they acceded to demands to revoke the original royal charter. In 1701 the Church of England was proclaimed, and in the course of the eighteenth century Maryland Catholics were first barred from public office, then disenfranchised, although not all of the laws passed against them (notably laws restricting property rights and imposing penalties for sending children to be educated in foreign Catholic institutions) were enforced, and some Catholics even continued to hold public office.
- Spanish Florida was ceded to Great Britain in 1763, the British divided Florida into two colonies. Both East and West Florida continued a policy of toleration for the Catholic Residents.
Colonies with no established church[edit]
- The Province of Pennsylvania was founded by Quakers, but the colony never had an established church.
- West Jersey, also founded by Quakers, prohibited any establishment.
- Delaware Colony
- The Colony of Rhode Island and Providence Plantations, founded by religious dissenters forced to flee the Massachusetts Bay colony, is widely regarded as the first polity to grant religious freedom to all its citizens.
Tabular summary[edit]
| Colony | Denomination | Disestablished1 |
|---|---|---|
| Connecticut | Congregational | 1818 |
| Georgia | Church of England | 17892 |
| Maryland | Catholic/Church of England | 1701/1776 |
| Massachusetts | Congregational | 1780 (in 1833 state funding suspended)3 |
| New Brunswick | Church of England | |
| New Hampshire | Congregational | 17904 |
| Newfoundland | Church of England | |
| North Carolina | Church of England | 17765 |
| Nova Scotia | Church of England | 1850 |
| Prince Edward Island | Church of England | |
| South Carolina | Church of England | 1790 |
| Canada West | Church of England | 1854 |
| West Florida | Church of England | N/A6,7 |
| East Florida | Church of England | N/A6,7 |
| Virginia | Church of England | 17868 |
| West Indies | Church of England | 1868 |
^Note 1: In several colonies, the establishment ceased to exist in practice at the Revolution, about 1776;[8] this is the date of permanent legal abolition.
^Note 2: in 1789 the Georgia Constitution was amended as follows: "Article IV. Section 10. No person within this state shall, upon any pretense, be deprived of the inestimable privilege of worshipping God in any manner agreeable to his own conscience, nor be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged to do. No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles."
^Note 3: From 1780 Massachusetts had a system which required every man to belong to a church, and permitted each church to tax its members, but forbade any law requiring that it be of any particular denomination. This was objected to, as in practice establishing the Congregational Church, the majority denomination, and was abolished in 1833.
^Note 4: Until 1877 the New Hampshire Constitution required members of the State legislature to be of the Protestant religion.
^Note 5: The North Carolina Constitution of 1776 disestablished the Anglican church, but until 1835 the NC Constitution allowed only Protestants to hold public office. From 1835-1876 it allowed only Christians (including Catholics) to hold public office. Article VI, Section 8 of the current NC Constitution forbids only atheists from holding public office.[9] Such clauses were held by the United States Supreme Court to be unenforceable in the 1961 case of Torcaso v. Watkins, when the court ruled unanimously that such clauses constituted a religious test incompatible with First and Fourteenth Amendment protections.
^Note 6: Religious tolerance for Catholics with an established Church of England was policy in the former Spanish Colonies of East and West Florida while under British rule.
^Note 7: In Treaty of Paris (1783), which ended the American Revolutionary War, the British ceded both East and West Florida back to Spain (see Spanish Florida).
^Note 8: Tithes for the support of the Anglican Church in Virginia were suspended in 1776, and never restored. 1786 is the date of the Virginia Statute of Religious Freedom, which prohibited any coercion to support any religious body.
Colonial support for separation[edit]
The Flushing Remonstrance shows support for separation of church and state as early as the mid-17th century, stating their opposition to religious persecution of any sort: "The law of love, peace and liberty in the states extending to Jews, Turks and Egyptians, as they are considered sons of Adam, which is the glory of the outward state of Holland, so love, peace and liberty, extending to all in Christ Jesus, condemns hatred, war and bondage." The document was signed December 27, 1657 by a group of English citizens in America who were affronted by persecution of Quakers and the religious policies of the Governor of New Netherland, Peter Stuyvesant. Stuyvesant had formally banned all religions other than the Dutch Reformed Church from being practiced in the colony, in accordance with the laws of the Dutch Republic. The signers indicated their "desire therefore in this case not to judge lest we be judged, neither to condemn least we be condemned, but rather let every man stand or fall to his own Master."[10] Stuyvesant fined the petitioners and threw them in prison until they recanted. However, John Bowne allowed the Quakers to meet in his home. Bowne was arrested, jailed, and sent to theNetherlands for trial; the Dutch court exonerated Bowne.
New York Historical Society President and Columbia University Professor of History Kenneth T. Jackson describes the Flushing Remonstrance as "the first thing that we have in writing in the United States where a group of citizens attests on paper and over their signature the right of the people to follow their own conscience with regard to God - and the inability of government, or the illegality of government, to interfere with that."[11]
Given the wide diversity of opinion on Christian theological matters in the newly independent American States, the Constitutional Convention believed a government sanctioned (established) religion would disrupt rather than bind the newly formed union together. George Washington wrote a letter in 1790 to the country's first Jewish congregation, theTouro Synagogue in Newport, Rhode Island to state:
There were also opponents to the support of any established church even at the state level. In 1773, Isaac Backus, a prominent Baptist minister in New England, wrote against a state sanctioned religion, saying: "Now who can hear Christ declare, that his kingdom is, not of this world, and yet believe that this blending of church and state together can be pleasing to him?" He also observed that when "church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued." Thomas Jefferson's influential Virginia Statute for Religious Freedom was enacted in 1786, five years before the Bill of Rights.
Most Anglican ministers, and many Anglicans, were Loyalists. The Anglican establishment, where it had existed, largely ceased to function during the American Revolution, though the new States did not formally abolish and replace it until some years after the Revolution.
Jefferson, Madison, and the "wall of separation"[edit]
The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island, in his 1644 book The Bloody Tenent of Persecution.[13][14] The phrase was later used by Thomas Jefferson as a description of the First Amendmentand its restriction on the legislative branch of the federal government, in an 1802 letter[15] to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
Jefferson's letter was in reply to a letter[16] that he had received from the Danbury Baptist Association dated October 7, 1801. In an 1808 letter to Virginia Baptists, Jefferson would use the same theme:
Jefferson and James Madison's conceptions of separation have long been debated. Jefferson refused to issue Proclamations of Thanksgiving sent to him by Congress during his presidency, though he did issue a Thanksgiving and Prayer proclamation as Governor of Virginia.[17][18] Madison issued four religious proclamations while President,[19] but vetoed two bills on the grounds they violated the first amendment.[20] On the other hand, both Jefferson and Madison attended religious services at the Capitol.[21] Years before the ratification of the Constitution, Madison contended "Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body."[22] After retiring from the presidency, Madison wrote of "total separation of the church from the state."[23] " "Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States," Madison wrote,[24] and he declared, "practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States."[25] In a letter to Edward Livingston Madison further expanded, "We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt."[26]Madison's original draft of the Bill of Rights had included provisions binding the States, as well as the Federal Government, from an establishment of religion, but the House did not pass them.[citation needed]
Jefferson's opponents said his position was the destruction and the governmental rejection of Christianity, but this was a caricature.[27] In setting up the University of Virginia, Jefferson encouraged all the separate sects to have preachers of their own, though there was a constitutional ban on the State supporting a Professorship of Divinity, arising from his own Virginia Statute for Religious Freedom.[28] Some have argued that this arrangement was "fully compatible with Jefferson's views on the separation of church and state;"[29] however, others point to Jefferson's support for a scheme in which students at the University would attend religious worship each morning as evidence that his views were not consistent with strict separation.[30] Still other scholars, such as Mark David Hall, attempt to sidestep the whole issue by arguing that American jurisprudence focuses too narrowly on this one Jeffersonian letter while failing to account for other relevant history[31]
Jefferson's letter entered American jurisprudence in the 1878 Mormon polygamy case Reynolds v. U.S., in which the court cited Jefferson and Madison, seeking a legal definition for the word religion. Writing for the majority, Justice Stephen Johnson Field cited Jefferson's Letter to the Danbury Baptists to state that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."[32] Considering this, the court ruled that outlawing polygamy was constitutional.
Patrick Henry, Massachusetts, and Connecticut[edit]
Jefferson and Madison's approach was not the only one taken in the eighteenth century. Jefferson's Statute of Religious Freedom was drafted in opposition to a bill, chiefly supported by Patrick Henry, which would permit any Virginian to belong to any denomination, but which would require him to belong to some denomination and pay taxes to support it. Similarly, the Constitution of Massachusetts originally provided that "no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience... provided he doth not disturb the public peace, or obstruct others in their religious worship," (Article II) but also that:
Since, in practice, this meant that the decision of who was taxable for a particular religion rested in the hands of the selectmen, usually Congregationalists, this system was open to abuse. It was abolished in 1833. The intervening period is sometimes referred to as an "establishment of religion" in Massachusetts.
The Duke of York had required that every community in his new lands of New York and New Jersey support some church, but this was more often Dutch Reformed, Quaker orPresbyterian, than Anglican. Some chose to support more than one church. He also ordained that the tax-payers were free, having paid his local tax, to choose their own church. The terms for the surrender of New Amsterdam had provided that the Dutch would have liberty of conscience, and the Duke, as an openly divine-right Catholic, was no friend of Anglicanism. The first Anglican minister in New Jersey arrived in 1698, though Anglicanism was more popular in New York.[33]
Connecticut had a real establishment of religion. Its citizens did not adopt a constitution at the Revolution, but rather amended their Charter to remove all references to the British Government. As a result, the Congregational Church continued to be established, and Yale College, at that time a Congregational institution, received grants from the State until Connecticut adopted a constitution in 1818 partly because of this issue.
Test acts[edit]
The absence of an establishment of religion did not necessarily imply that all men were free to hold office. Most colonies had a Test Act, and several states retained them for a short time. This stood in contrast to the Federal Constitution, which explicitly prohibits the employment of any religious test for Federal office, and which through the Fourteenth Amendment later extended this prohibition to the States.
For example, the New Jersey Constitution of 1776 provides liberty of conscience in much the same language as Massachusetts (similarly forbidding payment of "taxes, tithes or other payments" contrary to conscience). It then provides:
This would permit a Test Act, but did not require one.
The original charter of the Province of East Jersey had restricted membership in the Assembly to Christians; the Duke of York was fervently Catholic, and the proprietors of Perth Amboy, New Jersey were Scottish Catholic peers. The Province of West Jersey had declared, in 1681, that there should be no religious test for office. An oath had also been imposed on the militia during the French and Indian War requiring them to abjure the pretensions of the Pope, which may or may not have been applied during the Revolution. That law was replaced by 1799.
The Pennsylvania Constitution of 1776 provided:
Again, it provided in general that all tax-paying freemen and their sons shall be able to vote, and that no "man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship."
The U.S. Constitution[edit]
Article 6[edit]
Article Six of the United States Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". Prior to the adoption of the Bill of Rights, this was the only mention of religion in the Constitution.
The First Amendment[edit]
The first amendment to the US Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" The two parts, known as the "establishment clause" and the "free exercise clause" respectively, form the textual basis for the Supreme Court's interpretations of the "separation of church and state" doctrine.[35] Three central concepts were derived from the 1st Amendment which became America's doctrine for church-state separation: no coercion in religious matters, no expectation to support a religion against one's will, and religious liberty encompasses all religions. In sum, citizens are free to embrace or reject a faith, any support for religion - financial or physical - must be voluntary, and all religions are equal in the eyes of the law with no special preference or favoritism.[36]
The First Congress' deliberations show that its understanding of the separation of church and state differed sharply from that of their contemporaries in Europe.[citation needed] As 19th century Union Theological Seminary historian Philip Schaff observed:
An August 15, 1789 entry in Madison's papers indicates he intended for the establishment clause to prevent the government imposition of religious beliefs on individuals. The entry says: "Mr. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. ..."[37]
Some legal scholars, such as John Baker of LSU, theorize that Madison's initial proposed language—that Congress should make no law regarding the establishment of a "national religion"—was rejected by the House, in favor of the more general "religion" in an effort to appease the Anti-Federalists. To both the Anti-Federalists and the Federalists, the very word "national" was a cause for alarm because of the experience under the British crown.[38] During the debate over the establishment clause, Rep. Elbridge Gerry of Massachusetts took issue with Madison's language regarding whether the government was a national or federal government (in which the states retained their individual sovereignty), which Baker suggests compelled Madison to withdraw his language from the debate.
Following the argument between Madison and Gerry, Rep. Samuel Livermore of New Hampshire proposed language stating that, "Congress shall make no laws touching religion or the rights of conscience." This raised an uproar from members, such as Rep. Benjamin Huntingdon of Connecticut and Rep. Peter Sylvester of New York, who worried the language could be used to harm religious practice.
Others, such as Rep. Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution only gave Congress stated powers, which did not include establishing a national religion. Anti-Federalists such as Rep. Thomas Tucker of South Carolina moved to strike the establishment clause completely because it could preempt the religious clauses in the state constitutions. However, the Anti-Federalists were unsuccessful in persuading the House of Representatives to drop the clause from the first amendment.
The Senate went through several more narrowly targeted versions before reaching the contemporary language. One version read, "Congress shall make no law establishing one religious sect or society in preference to others, nor shall freedom of conscience be infringed," while another read, "Congress shall make no law establishing one particular religious denomination in preference to others." Ultimately, the Senate rejected the more narrowly targeted language.
At the time of the passage of the Bill of Rights, many states acted in ways that would now be held unconstitutional. All of the early official state churches were disestablished by 1833 (Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that, under the doctrine of Incorporation—which uses the Due Process clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states—these state churches could not be reestablished today.
Yet the provisions of state constitutions protected religious liberty, particularly the so-called freedom on conscience. During the nineteenth century (and before the incorporation of the First Amendment of the U.S. Constitution through the Fourteenth Amendment), litigants turned to these provisions to challenge Sunday laws (blue laws), bible-reading in schools, and other ostensibly religious regulations.[39]
The 14th Amendment[edit]
See also: Cantwell v. Connecticut
The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the due process and equal protection clauses among others. The amendment introduces the concept of incorporation of all relevant federal rights against the states. While it has not been fully implemented, the doctrine of incorporation has been used to ensure, through the Due Process Clause and Privileges and Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states.
The incorporation of the First Amendment establishment clause in the landmark case of Everson v. Board of Education has impacted the subsequent interpretation of the separation of church and state in regard to the state governments.[40] Although upholding the state law in that case, which provided for public busing to private religious schools, the Supreme Court held that the First Amendment establishment clause was fully applicable to the state governments. A more recent case involving the application of this principle against the states was Board of Education of Kiryas Joel Village School District v. Grumet (1994).
The "Separation" principle and the Supreme Court[edit]
Jefferson's concept of "separation of church and state" first became a part of Establishment Clause jurisprudence in Reynolds v. U.S., 98 U.S. 145 (1878).[41] In that case, the court examined the history of religious liberty in the US, determining that while the constitution guarantees religious freedom, "The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted." The court found that the leaders in advocating and formulating the constitutional guarantee of religious liberty were James Madison and Thomas Jefferson. Quoting the "separation" paragraph from Jefferson's letter to the Danbury Baptists, the court concluded that, "coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."
The centrality of the "separation" concept to the Religion Clauses of the Constitution was made explicit in Everson v. Board of Education, 330 U.S. 1 (1947), a case dealing with a New Jersey law that allowed government funds to pay for transportation of students to both public and Catholic schools. This was the first case in which the court applied theEstablishment Clause to the laws of a state, having interpreted the due process clause of the Fourteenth Amendment as applying the Bill of Rights to the states as well as the federal legislature. Citing Jefferson, the court concluded that "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
While the decision (with four dissents) ultimately upheld the state law allowing the funding of transportation of students to religious schools, the majority opinion (by Justice Hugo Black) and the dissenting opinions (by Justice Wiley Blount Rutledge and Justice Robert H. Jackson) each explicitly stated that the Constitution has erected a "wall between church and state" or a "separation of Church from State": their disagreement was limited to whether this case of state funding of transportation to religious schools breached that wall. Rutledge, on behalf of the four dissenting justices, took the position that the majority had indeed permitted a violation of the wall of separation in this case: "Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth." Writing separately, Justice Jackson argued that "[T]here are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters."
In 1962, the Supreme Court addressed the issue of officially-sponsored prayer or religious recitations in public schools. In Engel v. Vitale, 370 U.S. 421 (1962), the Court, by a vote of 6-1, determined it unconstitutional for state officials to compose an official school prayer and require its recitation in public schools, even when the prayer is non-denominational and students may excuse themselves from participation. (The prayer required by the New York State Board of Regents prior to the Court's decision consisted of: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country. Amen.") As the Court stated:
The court noted that it "is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America."[42] The lone dissenter, Justice Potter Stewart, objected to the court's embrace of the "wall of separation" metaphor: "I think that the Court's task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to be found in the Constitution."
In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court considered an Arkansas law that made it a crime "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory in any school or university that received public funds. The court's opinion, written by Justice Abe Fortas, ruled that the Arkansas law violated "the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group." The court held that the Establishment Clause prohibits the state from advancing any religion, and that "[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them." [43]
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the court determined that a Pennsylvania state policy of reimbursing the salaries and related costs of teachers of secular subjects in private religious schools violated the Establishment Clause. The court's decision argued that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable," the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."
Subsequent to this decision, the Supreme Court has applied a three-pronged test to determine whether government action comports with the Establishment Clause, known as the "Lemon Test". First, the law or policy must have been adopted with a neutral or non-religious purpose. Second, the principle or primary effect must be one that neither advances nor inhibits religion. Third, the statute or policy must not result in an "excessive entanglement" of government with religion.[45] (The decision in Lemon v. Kurtzman hinged upon the conclusion that the government benefits were flowing disproportionately to Catholic schools, and that Catholic schools were an integral component of the Catholic Church's religious mission, thus the policy involved the state in an "excessive entanglement" with religion.) Failure to meet any of these criteria is a proof that the statute or policy in question violates the Establishment Clause.
In 2002, a three judge panel on the Ninth Circuit Court of Appeals held that classroom recitation of the Pledge of Allegiance in a California public school was unconstitutional, even when students were not compelled to recite it, due to the inclusion of the phrase "under God." In reaction to the case, Elk Grove Unified School District v. Newdow, both houses of Congress passed measures reaffirming their support for the pledge, and condemning the panel's ruling.[46] The case was appealed to the Supreme Court, where the case was ultimately overturned in June 2004, solely on procedural grounds not related to the substantive constitutional issue. Rather, a five-justice majority held that Newdow, a non-custodial parent suing on behalf of his daughter, lackedstanding to sue.
When the Louisiana state legislature passed a law requiring public school biology teachers to give Creationism andEvolution equal time in the classroom, the Supreme Court ruled that the law was unconstitutional because it was intended to advance a particular religion, and did not serve the secular purpose of improved scientific education.[47] (See also: Creation and evolution in public education)
The display of the Ten Commandments as part of courthouse displays was considered in a group of cases decided in summer of 2005, including McCreary County v. ACLU of Kentucky and Van Orden v. Perry. While parties on both sides hoped for a reformulation or clarification of the Lemon test, the two rulings ended with narrow 5–4 and opposing decisions,[vague] with Justice Stephen Breyer the swing vote.
On December 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled in the case of ACLU v. Mercer County that the continued display of the Ten Commandments as part of a larger display on American legal traditions in a Kentucky courthouse was allowed, because the purpose of the display (educating the public on American legal traditions) was secular in nature.[48] In ruling on the Mount Soledad cross controversy on May 3, 2006, however, a federal judge ruled that the cross on public property on Mount Soledad must be removed.[49]
In what will be the case is Town of Greece v. Galloway, 12-696, the Supreme Court agreed to hear a case regarding whether prayers at town meetings, which are allowed, must allow various faiths to lead prayer, or whether the prayers can be predominately Christian.[50] On May 5, 2014, the U.S. Supreme Court ruled 5-4 in favor of the Town of Greece by holding that the U.S. Constitution not only allows for prayer at government meetings, but also for sectarian prayers like predominately Christian prayers.[51]
The Treaty of Tripoli[edit]
Main article: Treaty of Tripoli
In 1797, the United States Senate ratified a treaty with Tripoli that stated in Article 11:
Interpretive controversies[edit]
Some scholars and organizations disagree with the notion of "separation of church and state", or the way the Supreme Court has interpreted the constitutional limitation on religious establishment.[53] Such critics generally argue that the phrase misrepresents the textual requirements of the Constitution, while noting that many aspects of church and state were intermingled at the time the Constitution was ratified. These critics argue that the prevalent degree of separation of church and state could not have been intended by the constitutional framers. Some of the intermingling between church and state include religious references in official contexts, and such other founding documents as the United States Declaration of Independence, which references the idea of a "Creator" and "Nature's God", though these references did not ultimately appear in the Constitution nor do they mention any particular religious view of a "Creator" or "Nature's God."
These critics of the modern separation of church and state also note the official establishment of religion in several of the states at the time of ratification, to suggest that the modern incorporation of the Establishment Clause as to state governments goes against the original constitutional intent.[citation needed] The issue is complex, however, as the incorporation ultimately bases on the passage of the 14th Amendment in 1868, at which point the first amendment's application to the state government was recognized.[54] Many of these constitutional debates relate to the competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution. Other debates center on the principle of the law of the land in America being defined not just by the Constitution's Supremacy Clause, but also by legal precedence, making an accurate reading of the Constitution subject to the mores and values of a given era, and rendering the concept of historical revisionism irrelevant when discussing the Constitution.
The "religious test" clause has been interpreted to cover both elected officials and appointed ones, career civil servants as well as politicalappointees. Religious beliefs or the lack of them have therefore not been permissible tests or qualifications with regard to federal employees since the ratification of the Constitution. Seven states, however, have language included in their Bill of Rights, Declaration of Rights, or in the body of their constitutions that require state office-holders to have particular religious beliefs, though some of these have been successfully challenged in court.[55] These states are Texas, Massachusetts, Maryland, North Carolina, Pennsylvania, South Carolina, and Tennessee.[56]
The required beliefs of these clauses include belief in a Supreme Being and belief in a future state of rewards and punishments. (Tennessee Constitution Article IX, Section 2 is one such example.) Some of these same states specify that the oath of office include the words "so help me God." In some cases these beliefs (or oaths) were historically required of jurors and witnesses in court. At one time, such restrictions were allowed under the doctrine of states' rights; today they are deemed to be in violation of the federal First Amendment, as applied to the states via the 14th amendment, and hence unconstitutional and unenforceable.
While sometimes questioned as possible violations of separation, the appointment of official chaplains for government functions, voluntary prayer meetings at the Department of Justice outside of duty hours, voluntary prayer at meals in U.S. armed forces, inclusion of the (optional) phrase "so help me God" in the oaths for many elected offices, FBI agents, etc., have been held not to violate the First Amendment, since they fall within the realm of free exercise of religion.[citation needed]
Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The national motto "In God We Trust" has been challenged as a violation, but the Supreme Court has ruled that ceremonial deism is not religious in nature. A circuit court ruling affirmed Ohio's right to use as its motto a passage from the Bible, "With God, all things are possible", because it displayed no preference for a particular religion.[57]
Jeffries and Ryan (2001) argue that the modern concept of separation of church and state dates from the mid-twentieth century rulings of the Supreme Court. The central point, they argue, was a constitutional ban against aid to religious schools, followed by a later ban on religious observance in public education. Jeffries and Ryan argue that these two propositions—that public aid should not go to religious schools and that public schools should not be religious—make up the separationist position of the modern Establishment Clause.
Jeffries and Ryan argue that no-aid position drew support from a coalition of separationist opinion. Most important was "the pervasive secularism that came to dominate American public life," which sought to confine religion to a private sphere. Further, the ban against government aid to religious schools was supported before 1970 by most Protestants (and most Jews), who opposed aid to religious schools, which were mostly Catholic at the time. After 1980, however, anti-Catholic sentiment has diminished among mainline Protestants, and the crucial coalition of public secularists and Protestant churches has collapsed. While mainline Protestant denominations are more inclined towards strict separation of church and state, much evangelical opinion has now largely deserted that position. As a consequence, strict separationism is opposed today by members of many Protestant faiths, even perhaps eclipsing the opposition of Roman Catholics.[citation needed]
Critics of the modern concept of the "separation of church and state" argue that it is untethered to anything in the text of the constitution and is contrary to the conception of the phrase as the Founding Fathers understood it. Philip Hamburger, Columbia Law school professor and prominent critic of the modern understanding of the concept, maintains that the modern concept, which deviates from the constitutional establishment clause jurisprudence, is rooted in American anti-Catholicism and Nativism.[citation needed] Briefs before the Supreme Court, including by the U.S. government, have argued that some state constitutional amendments relating to the modern conception of separation of church and state (Blaine Amendments) were motivated by and intended to enact anti-Catholicism.[58]
J. Brent Walker, Executive Director of the Baptist Joint Committee, responded to Hamburger's claims noting; "The fact that the separation of church and state has been supported by some who exhibited an anti-Catholic animus or a secularist bent does not impugn the validity of the principle. Champions of religious liberty have argued for the separation of church and state for reasons having nothing to do with anti-Catholicism or desire for a secular culture. Of course, separationists have opposed the Catholic Church when it has sought to tap into the public till to support its parochial schools or to argue for on-campus released time in the public schools. But that principled debate on the issues does not support a charge of religious bigotry"[59]
Steven Waldman notes that; "The evangelicals provided the political muscle for the efforts of Madison and Jefferson, not merely because they wanted to block official churches but because they wanted to keep the spiritual and secular worlds apart." "Religious freedom resulted from an alliance of unlikely partners," writes the historian Frank Lambert in his book The Founding Fathers and the Place of Religion in America. "New Light evangelicals such as Isaac Bachus and John Leland joined forces with Deists and skeptics such as James Madison and Thomas Jefferson to fight for a complete separation of church and state."[60]
Politics and religion in the United States[edit]
Robert N. Bellah has argued in his writings that although the separation of church and state is grounded firmly in the constitution of the United States, this does not mean that there is no religious dimension in the political society of the United States. He used the term "Civil Religion" to describe the specific relation between politics and religion in the United States. His 1967 article analyzes the inaugural speech of John F. Kennedy: "Considering the separation of church and state, how is a president justified in using the word 'God' at all? The answer is that the separation of church and state has not denied the political realm a religious dimension."[61]
Robert S. Wood has argued that the United States is a model for the world in terms of how a separation of church and state—no state-run or state-established church—is good for both the church and the state, allowing a variety of religions to flourish.[62] Speaking at the Toronto-based Center for New Religions, Wood said that the freedom of conscience and assembly allowed under such a system has led to a "remarkable religiosity" in the United States that isn't present in other industrialized nations.[62] Wood believes that the U.S. operates on "a sort of civic religion," which includes a generally-shared belief in a creator who "expects better of us." Beyond that, individuals are free to decide how they want to believe and fill in their own creeds and express their conscience. He calls this approach the "genius of religious sentiment in the United States."[62]
First Amendment to the United States Constitution
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The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The Bill of Rights was originally proposed as a measure to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.
In Everson v. Board of Education (1947), the Court drew on Founding Father Thomas Jefferson's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof fordefamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota(1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
Contents
[hide]- 1 Text
- 2 Background
- 3 Establishment of religion
- 4 Free exercise of religion
- 5 Freedom of speech
- 6 Freedom of the press
- 7 Petition and assembly
- 8 Freedom of association
- 9 See also
- 10 References
- 11 Further reading
- 12 External links
Text
Background
Main article: Anti-Federalism
In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other thirteen states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.[2]
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.[3]
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures' request, James Madison proposed twenty constitutional amendments, which were then condensed to twelve and forwarded to the states. Ten of these were ratified and became the Bill of Rights.[4] The First Amendment passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent.[5][6] The First Amendment (along with the rest of the Bill of Rights) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.[7][8]
Establishment of religion
Main article: Establishment Clause
Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
In Reynolds v. United States (1878) the Supreme Court used these words to declare that "it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order." Quoting from Jefferson's Virginia Statute for Religious Freedom the court stated further in Reynolds:
Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:
In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. In the Board of Education of Kiryas Joel Village School District v. Grumet (1994),[12] Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion."[13] In a series of cases in the first decade of the 2000s—Van Orden v. Perry (2005), McCreary County v. ACLU (2005), andSalazar v. Buono (2010)—the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.[14]
Separationists
Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessmentsby James Madison, who drafted the First Amendment; Madison used the metaphor of a "great barrier."[15]
Justice Hugo Black adopted Jefferson's words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities."[17]
Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]
- the statute (or practice) lacked a secular purpose;
- its principal or primary effect advanced or inhibited religion; or
- it fostered an excessive government entanglement with religion.
The Lemon test has been criticized by justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.[19] In Agostini v. Felton (1997), the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice.[20] In Zelman v. Simmons-Harris (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.[19] Further tests, such as the endorsement test and coercion test, have been developed to determine whether a government action violated the Establishment Clause.[21][22]
In Lemon the Court stated that that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable," the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."[23]
Accommodationists
Accommodationists, in contrast, argue along with Justice William O. Douglas that "[w]e are a religious people whose institutions presuppose a Supreme Being".[24] This group holds that the Lemon test should be applied selectively.[24] As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor "developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals."[25][26]
Free exercise of religion
Main article: Free Exercise Clause
"Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order," In Reynolds v. United States(1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances."[27] In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendment applied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.[28]
In Sherbert v. Verner (1963),[29] the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.[30] In Wisconsin v. Yoder (1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.[31][32]
The need for a compelling interest was narrowed in Employment Division v. Smith (1990),[33] which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice.[34] In Church of Lukumi Babalu Aye v. City of Hialeah (1993),[35] the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the SanterÃa religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable," the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.[36]
In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), seeking to restore the compelling interest requirement applied in Sherbert and Yoder. In City of Boerne v. Flores (1997),[37] the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.[38] According to the court's ruling in Gonzales v. UDV (2006),[39] RFRA remains applicable to federal laws and so those laws must still have a "compelling interest".[40]
Freedom of speech
Main articles: Freedom of speech in the United States and United States free speech exceptions
Speech critical of the government
The Supreme Court declined to rule on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. For example, the Supreme Court never ruled on the Alien and Sedition Acts of 1798, legislation by President John Adams' Federalist Partyto ban seditious libel; three of the Supreme Court's justices presided over resulting sedition trials without indicating any reservations.[41]The leading critics of the law, Vice President Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment and other Constitutional provisions.[42] Jefferson succeeded Adams as president, in part due to the unpopularity of the latter's sedition prosecutions; he and his party quickly overturned the Acts and pardoned those imprisoned by them.[43] In the majority opinion in New York Times Co. v. Sullivan (1964),[44] Justice William J. Brennan, Jr. noted the importance of this public debate as a precedent in First Amendment law and ruled that the Acts had been unconstitutional: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."[45][46]
World War I
During the patriotic fervor of World War I and the First Red Scare, the Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States." Specifically, the Espionage Act of 1917 states that if anyone allows any enemies to enter or fly over the United States and obtain information from a place connected with the national defense, they will be punished.[47] Hundreds of prosecutions followed.[48] In 1919, the Supreme Court heard four appeals resulting from these cases: Schenck v. United States, Debs v. United States, Frohwerk v. United States, and Abrams v. United States.[49]
In the first of these cases, Socialist Party of America official Charles Schenck had been convicted under the Espionage Act for publishing leaflets urging resistance to the draft.[50] Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. InSchenck v. United States, the Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction.[51] This conviction continued to be debated over whether Schenck went against the right to freedom of speech protected by the First Amendment.[52] Justice Oliver Wendell Holmes, Jr., writing for the Court, explained that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."[53]One week later, in Frohwerk v. United States, the court again upheld an Espionage Act conviction, this time that of a journalist who had criticized U.S. involvement in foreign wars.[54] Both of these cases show that the government can overrule The Bill of Rights with certain acts like The Espionage Act of 1917. It all depends on what was done to put the United States in danger.
In Debs v. United States, the Court elaborated on the "clear and present danger" test established in Schenck.[55] On June 16, 1918, Eugene V. Debs, a political activist, delivered a speech in Canton, Ohio, in which he spoke of "most loyal comrades were paying the penalty to the working class – these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft."[56] Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger", taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services".[57][58] In Abrams v. United States, four Russian refugees appealed their conviction for throwing leaflets from a building in New York; the leaflets argued against President Woodrow Wilson's intervention in Russia against the October Revolution. The majority upheld their conviction, but Holmes and Justice Louis Brandeis dissented, holding that the government had demonstrated no "clear and present danger" in the four's political advocacy.[54]
Extending protections
The Supreme Court denied a number of Free Speech Clause claims throughout the 1920s, including the appeal of a labor organizer, Benjamin Gitlow, who had been convicted after distributing a manifesto calling for a "revolutionary dictatorship of the proletariat".[59] InGitlow v. New York (1925), the Court upheld the conviction, but a majority also found that the First Amendment applied to state laws as well as federal laws, via the Equal Protection Clause of the Fourteenth Amendment.[60][61] Holmes and Brandeis dissented in several more cases in this decade, however, advancing the argument that the Free Speech Clause protected a far greater range of political speech than the Court had previously acknowledged. In Whitney v. California (1927),[62] in which Communist Party USA organizer Charlotte Anita Whitney had been arrested for "criminal syndicalism", Brandeis wrote a dissent in which he argued for broader protections for political speech:
In Herndon v. Lowry (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon, who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States. In a 5–4 decision, the Court reversed Herndon's conviction, upholding Holmes' "clear and present danger" test for the first time and arguing that the state of Georgiahad not demonstrated that Herndon's actions met this standard.[64]
In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."[65]The statute provided law enforcement a tool to combat Communist leaders. After Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party, he petitioned for certiorari, which the Supreme Court granted.[66] In Dennis v. United States (1951),[67] the Court upheld the law, 6–2.[a][68] Chief Justice Fred M. Vinsonrelied on Holmes' "clear and present danger" test as adapted by Learned Hand: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger."[69] Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."[70] In a concurring opinion, Justice Felix Frankfurter proposed a "balancing test", which soon supplanted the "clear and present danger" test:
In Yates v. United States (1957), the Supreme Court limited the Smith Act prosecutions to "advocacy of action" rather than "advocacy in the realm of ideas". Advocacy of abstract doctrine remained protected while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act.[71][72]
During the Vietnam War, the Court's position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien (1968),[73] fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system,[74][75]the next year, the court handed down its decision in Brandenburg v. Ohio (1969),[76] expressly overruling Whitney v. California.[77] Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms:
Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.[79][80] In Cohen v. California (1971),[81] the Court voted 5–4 to reverse the conviction of a man wearing a jacket reading "Fuck the Draft" in the corridors of a Los Angeles County courthouse. Justice John Marshall Harlan wrote in the majority opinion that Cohen's jacket fell in the category of protected political speech despite the use of an expletive: "one man's vulgarity is another man's lyric."[82]
Political speech
Anonymous speech
In Talley v. California (1960),[83] the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. Justice Hugo Black wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression . . . . Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind."[84] In McIntyre v. Ohio Elections Commission (1995),[85]the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature.[86] However, in Meese v. Keene (1987),[87] the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda", requiring their sponsors to be identified.[88]
Campaign finance
Main article: Campaign finance reform in the United States
In Buckley v. Valeo (1976),[89] the Supreme Court reviewed the Federal Election Campaign Act of 1971 and related laws, which restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court affirmed the constitutionality of limits on campaign contributions, stating that they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."[90] However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech."[91][92]
The court again scrutinized campaign finance regulation in McConnell v. Federal Election Commission (2003).[93] The case centered on the Bipartisan Campaign Reform Act of 2002 (BCRA), a federal law that imposed new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which the Court agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures."[94] The Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v. Des Moines Independent Community School District.
In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007),[95] the Court sustained an "as applied" challenge to BCRA, holding that issue ads may not be banned from the months preceding a primary or general election. In Davis v. Federal Election Commission(2008),[96] the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his or her own money violated the freedom of speech of the self-financing candidate.[97]
In Citizens United v. Federal Election Commission (2010),[98] the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce (1990),[99] which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.[100] In other words, the ruling was considered to hold that "political spending is a form of protected speech under the First Amendment".[101]
In McCutcheon v. Federal Election Commission (2014),[102] the Court ruled that federal aggregate limits on how much a person can donate to candidates, political parties, andpolitical action committees, combined respectively in a two-year period known as an “election cycle,” violated the Free Speech Clause of the First Amendment.[103]
Flag desecration
The divisive issue of flag desecration as a form of protest first came before the Supreme Court in Street v. New York (1969).[104] In response to hearing an erroneous report of the murder of civil rights activist James Meredith, Sidney Street burned a 48-star U.S. flag. Street was arrested and charged with a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]."[105] In a 5–4 decision, the Court, relying onStromberg v. California (1931),[106] found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate that he was convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist[ed] the pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.[107][108]
The ambiguity with regard to flag-burning statutes was eliminated in Texas v. Johnson (1989).[109] In that case, Gregory Lee Johnson burned an American flag at a demonstration during the 1984 Republican National Convention in Dallas, Texas. Charged with violating a Texas law prohibiting the vandalizing of venerated objects, Johnson was convicted, sentenced to one year in prison, and fined $2,000. The Supreme Court reversed his conviction in a 5–4 vote. Justice William J. Brennan, Jr. wrote in the decision that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."[110] Congress then passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman (1990).[111][112]A Flag Desecration Amendment to the U.S. Constitution has been proposed repeatedly in Congress since 1989, and in 2006 failed to pass the Senate by a single vote.[113]
Falsifying military awards
While the unauthorized wear or sale of the Medal of Honor has been a punishable offense under federal law since the early 20th century,[114][115] the Stolen Valor Act made criminal the act of not only wearing, but also verbally claiming entitlement to military awards that a person did not in fact earn.[116] In United States v. Alvarez (2012), the Supreme Court struck down the Stolen Valor Act, ruling that the law violated the right to free speech for the government to punish people for making false claims regarding military service or honors.[117] The decision was a 6–3 ruling, but the six justices in the majority could not agree on a single rationale for it.[118]
Commercial speech
Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Court uses a list of four indicia:[119]
- The contents do "no more than propose a commercial transaction."
- The contents may be characterized as advertisements.
- The contents reference a specific product.
- The disseminator is economically motivated to distribute the speech.
Alone, each indicium does not compel the conclusion that an instance of speech is commercial; however, "[t]he combination of all these characteristics . . . provides strong support for . . . the conclusion that the [speech is] properly characterized as commercial speech."[120]
In Valentine v. Chrestensen (1942),[121] the Court upheld a New York City ordinance forbidding the "distribution in the streets of commercial and business advertising matter."[122]Writing for a unanimous court, Justice Owen Roberts explained:
In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976),[124] the Court overruled Valentine and ruled that commercial speech was entitled to First Amendment protection:
In Ohralik v. Ohio State Bar Association (1978),[126] the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech:
In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980),[128] the Court clarified what analysis was required before the government could justify regulating commercial speech:
- Is the expression protected by the First Amendment? Lawful? Misleading? Fraud?
- Is the asserted government interest substantial?
- Does the regulation directly advance the governmental interest asserted?
- Is the regulation more extensive than is necessary to serve that interest?
Six years later, the U.S. Supreme Court, applying the Central Hudson standards in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986),[129] affirmed the Supreme Court of Puerto Rico's conclusion that Puerto Rico's Games of Chance Act of 1948, including the regulations thereunder, was not facially unconstitutional. The lax interpretation of Central Hudson adopted by Posadas was soon restricted under 44 Liquormart, Inc. v. Rhode Island (1996),[130] when the Court invalidated a Rhode Island law prohibiting the publication of liquor prices.
School speech
In Tinker v. Des Moines Independent Community School District (1969),[131] the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War. The Court ruled that the school could not restrict symbolic speech that did not "materially and substantially" interrupt school activities.[132] Justice Abe Fortas wrote:
In Healy v. James (1972), the Court ruled that Central Connecticut State College's refusal to recognize a campus chapter of Students for a Democratic Society was unconstitutional, reaffirming Tinker.[134]
However, since 1969 the Court has also placed several limitations on Tinker interpretations. In Bethel School District v. Fraser (1986),[135] the Court ruled that a student could be punished for his sexual-innuendo-laced speech before a school assembly and, in Hazelwood v. Kuhlmeier (1988),[136] the Court found that school newspapers enjoyed fewer First Amendment protections and are subject to school censorship.[137] In Morse v. Frederick (2007),[138] the Court ruled that schools could, consistent with the First Amendment, restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use."[139]
Obscenity
Main article: United States obscenity law
The federal government and the states have long been permitted to limit obscenity or pornography. While the Supreme Court has generally refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. However, the definitions of obscenity and pornography have changed over time.[10]
In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin (1868).[140] The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."[141] In the early twentieth century, literary works including An American Tragedy (Theodore Dreiser, 1925) and Lady Chatterley's Lover (D.H. Lawrence, 1928) were banned for obscenity. In the federal district court case United States v. One Book Called Ulysses (1933), Judge John M. Woolsey established a new standard to evaluate James Joyce's novel Ulysses (1922), stating that works must be considered in their entirety, rather than declared obscene on the basis of an individual part of the work.[142]
The Supreme Court ruled in Roth v. United States (1957)[143] that the First Amendment did not protect obscenity.[142] It also ruled that theHicklin test was inappropriate; instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."[144] This definition proved hard to apply, however, and in the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene.[145] Justice Potter Stewart, in Jacobellis v. Ohio (1964),[146] famously stated that, although he could not precisely define pornography, "I know it when I see it".[147]
The Roth test was expanded when the Court decided Miller v. California (1973).[148] Under the Miller test, a work is obscene if:
Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest, leaving the question of obscenity to local authorities.[142] Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber (1982) and Osborne v. Ohio (1990),[150][151] ruling that the government's interest in protecting children from abuse was paramount.[152][153]
Personal possession of obscene material in the home may not be prohibited by law. In Stanley v. Georgia (1969),[154] the Court ruled that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch."[155] However, it is constitutionally permissible for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition (2002)[156] further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child" it was overly broad and unconstitutional under the First Amendment[157] and that:
In United States v. Williams (2008),[159] the Court upheld the PROTECT Act of 2003, ruling that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.[160][161]
Memoirs of convicted criminals
In some states, there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit.[162] These laws were a response to offers to David Berkowitz to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board (1991).[163] That statute did not prohibit publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a time. The interest from the escrow account was used to fund the New York State Crime Victims Board – an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.[164]
Defamation
Main article: United States defamation law
American tort liability for defamatory speech or publications traces its origins to English common law. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given byWilliam Blackstone and Edward Coke. An action of slander required the following:[165]
- Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
- That the charge must be false;
- That the charge must be articulated to a third person, verbally or in writing;
- That the words are not subject to legal protection, such as those uttered in Congress; and
- That the charge must be motivated by malice.
An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements.[166] For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and true statements could damage this support even more than false ones.[167] Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule."[166]
Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone's argument that the punishment of "dangerous or offensive writings . . . [was] necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty" and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written.[167] Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.
The Supreme Court's ruling in New York Times Co. v. Sullivan (1964)[44] fundamentally changed American defamation law. The case redefined the type of "malice" needed to sustain a libel case. Common law malice consisted of "ill-will" or "wickedness". Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by "clear and convincing evidence" that there was actual malice. The case involved an advertisement published in The New York Times indicating that officials in Montgomery, Alabamahad acted violently in suppressing the protests of African-Americans during the civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel, stating that the advertisement damaged his reputation. The Supreme Court unanimously reversed the $500,000 judgment against the Times. Justice Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice"—"knowledge that it was false or with reckless disregard of whether it was false or not."[168][169] In sum, the court held that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)."[170]
While actual malice standard applies to public officials and public figures,[171] in Philadelphia Newspapers v. Hepps (1988),[172] the Court found that, with regard to private individuals, the First Amendment does "not necessarily force any change in at least some features of the common-law landscape."[173] In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)[174] the Court ruled that "actual malice" need not be shown in cases involving private individuals, holding that "[i]n light of the reduced constitutional value of speech involving no matters of public concern . . . the state interest adequately supports awards of presumed and punitive damages—even absent a showing of 'actual malice.'"[175][176] In Gertz v. Robert Welch, Inc. (1974), the Court ruled that a private individual had to prove actual malice only to be awarded punitive damages, but not to seek actual damages.[177][178] In Hustler Magazine v. Falwell (1988),[179] the Court extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected parody, in this case a fake advertisement in Hustler suggesting that evangelist Jerry Falwell's first sexual experience had been with his mother in an outhouse. Since Falwell was a public figure, the Court ruled that "importance of the free flow of ideas and opinions on matters of public interest and concern" was the paramount concern, and reversed the judgement Falwell had won against Hustler for emotional distress.[180]
In Milkovich v. Lorain Journal Co. (1990),[181] the Court ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled "opinion," but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.[182] Nonetheless, it has been argued that Milkovich and other cases effectively provide for an opinion privilege.[183] In consequence a significant number of states have enacted state opinion privilege laws.[citation needed]
Private action
State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in Pruneyard Shopping Center v. Robins.[184] In that case, the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude such individuals.[185] However, the Court did maintain that shopping centers could impose "reasonable restrictions on expressive activity."[186] Subsequently, New Jersey, Colorado, Massachusetts and Puerto Rico courts have adopted the doctrine;[187][188] California's courts have repeatedly reaffirmed it.[189]
Freedom of the press
Main article: Freedom of the press in the United States
The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.[190][191] This right was described in Branzburg v. Hayes as "a fundamental personal right" that is not confined to newspapers and periodicals.[192] In Lovell v. City of Griffin (1938),[193] Chief Justice Charles Evans Hughes defined "press" as "every sort of publication which affords a vehicle of information and opinion."[194] This right has been extended to media including newspapers, books, plays, movies, and video games.[195] While it is an open question whether people who blog or use social media are journalists entitled to protection by media shield laws,[196] they are protected equally by the Free Speech Clause and the Free Press Clause, because both clauses do not distinguish between media businesses and nonprofessional speakers.[190][191][197][198] This is further shown by the Supreme Court consistently refusing to recognize the First Amendment as providing greater protection to the institutional media than to other speakers.[199][200][201] For example, in a case involving campaign finance laws the Court rejected the "suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by" non-institutional-press businesses.[202]
A landmark decision for press freedom came in Near v. Minnesota (1931),[203] in which the Supreme Court rejected prior restraint (pre-publication censorship). In this case, the Minnesota legislature passed a statute allowing courts to shut down "malicious, scandalous and defamatory newspapers", allowing a defense of truth only in cases where the truth had been told "with good motives and for justifiable ends".[204] In a 5–4 decision, the Court applied the Free Press Clause to the states, rejecting the statute as unconstitutional. Hughes quoted Madison in the majority decision, writing, "The impairment of the fundamental security of life and property by criminal alliances and official neglect emphasizes the primary need of a vigilant and courageous press".[205]
However, Near also noted an exception, allowing prior restraint in cases such as "publication of sailing dates of transports or the number or location of troops".[206] This exception was a key point in another landmark case four decades later: New York Times Co. v. United States (1971),[207] in which the administration of President Richard Nixon sought to ban the publication of the Pentagon Papers, classified government documents about the Vietnam War secretly copied by analyst Daniel Ellsberg. The Court found, 6–3, that the Nixon administration had not met the heavy burden of proof required for prior restraint. Justice Brennan, drawing on Near in a concurrent opinion, wrote that "only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an evil kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order." Justices Black and Douglas went still further, writing that prior restraints were never justified.[208]
The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. v. Tornillo(1974),[209] the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish.[210]
Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. In Federal Communications Commission v. Pacifica Foundation,[211] the Supreme Court upheld the Federal Communications Commission's authority to restrict the use of "indecent" material in broadcasting.
State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. (1936),[212] the Court invalidated a state tax on newspaper advertising revenues, holding that the role of the press in creating "informed public opinion" was vital.[213] Similarly, some taxes that give preferential treatment to the press have been struck down. In Arkansas Writers' Project v. Ragland (1987),[214] for instance, the Court invalidated an Arkansas law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content. In Leathers v. Medlock (1991),[215] the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."[216]
In Branzburg v. Hayes (1972),[217] the Court ruled that the First Amendment did not give a journalist the right to refuse a subpoena from a grand jury. The issue decided in the case was whether a journalist could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the belief that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment."[218] The 5–4 decision was that such a protection was not provided by the First Amendment. However, a concurring opinion by Justice Lewis F. Powell, in which he stated that a claim for press privilege "should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.", has been frequently cited by lower courts since the decision.[219]
Petition and assembly
Main articles: Right to petition in the United States and Freedom of assembly
The Petition Clause protects the right "to petition the government for a redress of grievances."[14] This includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis.[198] The Petition Clause first came to prominence in the 1830s, when Congress established the gag rule barring anti-slavery petitions from being heard; the rule was overturned by Congress several years later. Petitions against the Espionage Act of 1917 resulted in imprisonments. The Supreme Court did not rule on either issue.[220]
In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), the Supreme Court stated that the right to petition encompass "the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition." Today thus this right encompasses petitions to all three branches of the federal government—the Congress, the executive and the judiciary—and has been extended to the states through incorporation.[220][221] According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain.[222] The right not only protects demands for "a redress of grievances" but also demands for government action.[220][222] The petition clause includes according to the Supreme Court the opportunity to institute non-frivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.[221]
In Borough of Duryea v. Guarnieri (2011),[223] the Supreme Court stated regarding the Free Speech Clause and the Petition Clause:
The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank (1875),[224] the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances."[225] Justice Morrison Waite's opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions.[220]
In two 1960s decisions collectively known as forming the Noerr-Pennington doctrine,[b] the Court established that the right to petition prohibited the application of antitrust law to statements made by private entities before public bodies: a monopolist may freely go before the city council and encourage the denial of its competitor's building permit without being subject to Sherman Act liability.[226]
Freedom of association
Further information: Freedom of association
Although the First Amendment does not explicitly mention freedom of association, the Supreme Court ruled, in National Association for the Advancement of Colored People v. Alabama (1958),[227][228] that this freedom was protected by the Amendment and that privacy of membership was an essential part of this freedom.[229] The U.S. Supreme Court decided in Roberts v. United States Jaycees (1984) that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."[230] In Roberts the Court held that associations may not exclude people for reasons unrelated to the group's expression, such as gender.[231]
However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995),[232] the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view.[233] Likewise, in Boy Scouts of America v. Dale (2000),[234] the Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.[235]