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On December 15, 1791, the new United States of America ratified the Bill of Rights containing the first ten amendments of the Constitution. These amendments ensured the fundamental rights of American citizens. Included in the first ten amendments was, of course, the First Amendment. The First Amendment protected freedom of speech, protest, press, petition, and religion under federal law for all United States citizens. British colonial rule tightly monitored speech and press, and prosecuted offenders under the seditious libel laws. Sometimes the violators were punished severely, with the bleakest being death. The English used this to their advantage to silence political opposition. The Sons of Liberty, a political group organized to protest the British Acts, brutally fought these laws by burning effigies and looting the homes of those believed to be loyal to governors and the Crown. The colonists began to understand the British oppression of their fundamental rights and started to resist them. Boycotts of British goods became more popular, the colonists opposed the law of sedition during certain court cases, such as the case of John Peter Zenger, who printed a journal that criticized the government. Zenger became a symbol of the freedom of the press in the young American colonies.
When out of the grasp of England, the Founding Fathers argued that protection of speech was imperative to the proper function of a free nation and created the Bill of Rights that incorporated the First Amendment. Cases such as the New York Times Company vs. the United States and Hazelwood School District vs. Kuhlmeier have tested the limits of the freedoms afforded under the amendment. The formation and establishment of the First Amendment demonstrated the importance of freedom of speech and press in American history and the colonies’ desire to separate from the oppressive laws that the British placed upon them. However, the amendment’s protections have been questioned by judges and individuals alike when debating a solution to solve censorship issues because of the amount of freedom it provides.
Prior to the institution of English common law, English citizens were ruled by unwritten local customs that were often enforced in an erratic fashion, similarly seen in Germanic cultures in continental Europe. These customs varied from community to community. Following the Norman Conquest of 1066, England began to consolidate power and establish new systems of authority and justice. English common law emerged from the shifting of this power by the new king, William of Normandy. New structures of legal action were established through writs or royal orders. Each had a specific “fix” for a specific wrongdoing. In certain cases, further appeals would have to be made to the king. This gave birth to the Court of Equity or the Court of Chancery. These courts were allowed to apply principles of equity from other forms of law, such as natural law, rather than apply only common law to achieve a fair verdict. In the Middle Ages, English common law coexisted with other forms of law until the seventeenth century. In the seventeenth century, common law triumphed over other types of law in England. Parliament established a permanent check on the king’s power and declared all other systems of law secondary to common law. In the late 1600s, Parliament gained the power to make laws themselves through the English Bill of Rights.
The concept of seditious libel had existed long before the founding of the colonies. Seditious libel is defined as written or spoken words, symbols, pictures, or other forms of communication used to criticize, challenge, or undermine a government or its policies and officials. The English government tightly controlled what was published in newspapers and other news sources since the introduction of the printing press in the fifteenth century. As English common law evolved in the 1600s, a person could be prosecuted under seditious libel laws. The Crown took advantage of this and used it to consolidate power and repress political opponents. Truth in the court was not a defense, and it made the offense worse. Offenders were punished severely. Methods included public whippings and even execution.
Seditious libel laws arrived in the American colonies with the English colonists, as they were a protectorate of the Crown. As time went on, colonists began to show their dissatisfaction with the seditious libel laws. They found that the opportunities for independence in America did not align with the tyrannous laws of England. These views came into conflict in 1735 with the trial of John Peter Zenger. Zenger, a printer who published the New York Weekly Journal, published several articles and advertisements criticizing the appointed governor of New York, William Cosby. Although he had only printed the pieces, Zenger was eventually apprehended and charged with seditious libel. When interrogated, Zenger refused to name the writers of the articles. Crosby not only picked the judges to hear the case but also stacked the first jury with loyalists. Public pressure caused a new jury to be empaneled. The jury had to decide if Zenger had published the statements. Zenger and his lawyer, Andrew Hamilton of Philadelphia, had admitted to publishing the articles. Nevertheless, the jury disregarded the judges’ instructions and acquitted the publisher of all charges within minutes. This was a pivotal moment in the history of the development of the First Amendment because the colonists started to understand that the protection of speech was fundamental to the proper functioning of a democracy.
When the Stamp Act of 1765 was passed by Parliament, the colonists were furious. The Stamp Act taxed printed materials such as newspapers and magazines. The colonists truly began to feel that their rights were being infringed upon by England and began to speak up against these laws. One such action was that of the Boston Gazette, a newspaper that took aim at the British government with criticism of the Prime Minister and Stamp Act. The Sons of Liberty, a group of protestors who included some prominent patriots and were best known for orchestrating the Boston Tea Party, violently opposed and antagonized the British, hanged and burned effigies of numerous officials, and even robbed homes of the wealthy whom they believed were favored by the royal governors. Seditious speech spread like wildfire throughout the cities and colonies. This ranged from pamphlets to cartoons. Many juries who were sympathetic to the Patriot cause did not convict those arrested for unconstitutional speech.
Eventually, after months of protest, violence, and the boycotting of British goods, Parliament repealed the Stamp Act in early 1766, instead replacing it with the Declaratory Act. The Declaratory Act stated that Parliament had the same taxing authority over the American colonies as it did England. The implementation of the Stamp Act, however, contributed to the spirit and unity that was needed for a revolution to form a new nation.
Decades after the Revolutionary War, the framers of the new Constitution were out of Britain’s grasp. However, antifederalists argued that the ratification of the Constitution would put too much power into the hands of the federal government at the expense of the states. They also testified that the new document lacked protection for citizens’ individual rights. The ratification of the Constitution revolved around the adoption of a Bill of Rights that would protect basic liberties by law. The new Bill of Rights was presented to Congress in 1789 and was adopted in 1791; it included the first ten amendments to the United States Constitution.
The framers of the Constitution earnestly accepted the freedom of speech and press as the First Amendment and basically dissolved the laws of seditious libel. James Madison, the man who drafted most of the Bill of Rights and eventually became the fourth President, declared that “the censorial power is in the people over the Government, and not in the Government over the people,” broadcasting his argument for the need of the First Amendment to be included in the Constitution (“First Amendment,” History.com).
Free speech and press did not last long in America, as John Adams signed into law the Sedition Act in 1798. The Sedition Act made it illegal to say or publish anything false or slanderous against the government or anyone of status in the government. However, Thomas Jefferson, who was elected president in 1801 by defeating Adams, allowed the law to expire and pardoned those who had been convicted under the Act.
The First Amendment, as written in 1791, states the following: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” (“First Amendment,” Constitution Annotated). The amendment establishes freedom of speech, press, religion, assembly, and the right to petition. This also means that the Constitution protects U.S. citizens from censorship by the government and educational institutions, but the protections are not absolute, spurring Supreme Court cases to justify whether the speech is protected by law. Such cases include New York Times Company vs. United States; Tinker vs. Des Moines Independent Community School District; and Hazelwood School District vs. Kuhlmeier, which are valuable to discuss to put the boundaries of the amendment into perspective.
The amendment establishes many types of expression safeguarded under the law. Freedom of speech is guaranteed and protected under the First Amendment. This gives U.S. citizens the right to express themselves freely without the fear of interference by the government. However, certain types of speech, such as hate speech, have been problematic in determining whether it is protected under the law by the Supreme Court. The amendment also protects freedom of the press, which allows Americans to freely express themselves through publication, but libel is not protected. It also established the separation between church and state by prohibiting the government from establishing a state religion and favoring certain religions over others. Lastly, the First Amendment defends the right to peacefully associate or gather with a group of people for political, social, economic, or religious reasons, and allows citizens to sign petitions or file lawsuits.
In 1967, then Secretary of Defense Robert McNamara authorized an undercover study by the government on the involvement of the United States in the Vietnam War. Once completed in 1968, the study involved 47 volumes of more than 7,000 pages of information and was labeled classified. In early 1971, Daniel Ellsberg, an employee who had worked on the task, covertly copied the documents and handed them over to reporters of the New York Times. After numerous months of review, the company began publishing the papers on June 13, 1971. Following the publishing of the first three installments, the Nixon Administration obtained a restraining order forbidding the further publication of the documents, citing national security concerns.
The New York Times Company vs. the United States case best exemplifies how the free press can push the envelope against the government. It addressed the violation of the First Amendment by the Nixon Administration in attempting to prevent the New York Times company from publishing documents concerning the United State’s involvement in the Vietnam War. The case became to be known as the “Pentagon Papers Case” because it pertained to a classified Defense Department study. President Richard Nixon claimed that prior restraint was essential to protect national security. The Times appealed to the Supreme Court, holding that the government had not met the required burden to justify prior restraint. The case was argued on June 26, 1971.
The First Amendment forbids restraint of the press by the government. Therefore, there is no edict banning the publication of material by the press. The amendment also does not tolerate restraint based on speculation that consequences may occur because of published information. Only proof from the government that publication can directly cause a corresponding event that can put American forces in danger can back the issuing of a temporary restraining order. Until the government proves a danger, the First Amendment states that no ban may be made.
In a 6-3 decision, the Court nullified the restraining order and allowed the New York Times and other companies to resume printing of such material on June 30, 1971. It was considered a major victory against government censorship because the Times faced a challenging task to convince the Court into allowing the publication of the documents.
In some instances, the First Amendment can also provide protection to students victims of censorship against educational institutions, such as in the case of Tinker vs. Des Moines Independent Community School District. In December of 1965, a band of students and parents gathered to discuss ways to protest the involvement of the United States in the Vietnam War and show a way for their support of a truce. One decision was for students to wear black armbands with peace symbols printed on them. Officials of the Des Moines Independent Community School District uncovered the plan and swiftly banned the wearing of the armbands. However, students were still allowed to wear political buttons and Iron Crosses. Several students donned black armbands in school and faced suspension.
The families of the students challenged the policy of the schools in the district court, but the lawsuit was dismissed. The students then appealed to the Supreme Court. Petitioned by Mary Beth Tinker, a junior high school student, the case was argued on November 12, 1968. It addressed the policy instituted by the school district that suppressed symbolic protests of opposition to the Vietnam War. The students argued that the armbands did not cause disruption of school functions.
The Supreme Court held that the actions of those participating in the war were completely different from what the armbands represented. The students did not forfeit their First Amendment rights while they were on the school’s property. In order to justify the need for the policy, the district needed evidence that the wearing of the armband would substantially interfere with the functioning of the school. The district’s actions arose from fear of the possibility of interference. The policy was designed to censor opposition to the war in the district. There was no evidence proving the armbands caused a disruption.
In a 7-2 decision, the students won the case on February 24, 1969. The policy was abolished and the suspensions were overturned by the Court. This case is important today because it continues to provide a basis if the rights of protest and speech of students are infringed upon by the school without causing a true disruption.
The rights provided by the First Amendment, however, do not always protect students from the authority of educational institutions, as seen in the Hazelwood School District case. The Spectrum, a school-sponsored student newspaper in Hazelwood East High School in Missouri, wrote an issue of the paper containing content related to teenage pregnancy and the effect of divorce on students. The school principal, Robert E. Reynolds, always reviewed each issue before it was released to the school community. He objected to two of the articles in the May 13, 1983 issue. Reynolds found those articles to be inappropriate and withheld them from publication. Therefore, the students filed suit in federal district court, alleging censorship. Although the district court ruled against the students, Cathy Kuhlmeier and two other school journalists appealed and had the district court decision overturned by the Eighth Circuit Court of Appeals. The school district then appealed to the Supreme Court.
The case of Hazelwood School District vs. Kuhlmeier was argued before the Supreme Court on October 13, 1987. It discussed whether the principal’s decision in deleting two of the articles from the May 13, 1983 issue violated the First Amendment rights of the students. Some Justices sided with the students. Justice William J. Brennan Jr. cited Tinker vs. Des Moines Independent Community School District, stating that students did not lose their rights to free speech and press when they stepped on school property.
In a 5-3 decision, the Court decided in favor of the Hazelwood School District on January 13, 1988. The Court held that the First Amendment did not obligate the school to promote certain types of speech. It opined that the school must also be able to set high standards of student speech spread under their sponsorship. It also held that the school retained the right to refuse speech that affected civilized order. The school’s administration maintained the right to govern the content and style of student speech that was included in the school’s expressive activities, such as the newspaper. Therefore, the school did not violate the student’s rights when certain types of speech were censored as long as their actions were related to teaching concerns. Hazelwood School District vs. Kuhlmeier set a new model for school-sponsored speech, contrary to student-initiated speech for educational institutions across the United States.
The First Amendment is still one of, if not, the most important amendments to ever be ratified, and it still holds firm today. Without the freedom of speech, press, or protest, the United States of America would become a censor-crazy nation, depriving its citizens of rights that are basic tenets of democracy. The First Amendment touches each and every American. Citizens are able to freely go and protest against the government or talk politics over the dinner table without fear of punishment. They are allowed to practice whatever religion they choose and petition for better working conditions at their place of employment. Individuals are allowed to criticize the government. With this privilege, Americans are also expected to defend their rights whenever infringed upon — it is what makes the United States of America a beacon of freedom, one that the entire world sees.
First Amendment rights are vital to the functioning of a democracy. Before the establishment of the United States of America, Britain used seditious libel laws to deal with the problem. The colonists despised this and protested against it. After the establishment of the United States, the Founding Fathers brought forth the need for the freedom of speech, press, protest, and rights to religion and petition. If not for the First Amendment, the citizens would be oppressed by laws that would forbid them to voice their thoughts — both spoken and written — without the fear of reprisal. The First Amendment allows American citizens to express who they truly are.
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