What is the First Amendment?

The First Amendment protects five core freedoms: speech, religion, press, peaceable assembly, and petition of the government for redress of grievances. Ratified on December 15, 1791 as part of the Bill of Rights, it was drafted by James Madison in response to Anti-Federalist demands that the new Constitution include explicit guarantees of personal liberty. Its forty-five words begin Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, then forbid laws abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The two religion clauses operate together. The Establishment Clause prevents the federal government, and since Everson v. Board of Education (1947) the states as well, from creating an official church or favoring one faith over another. The Free Exercise Clause protects worship and religious practice, although the Supreme Court has held in cases such as Reynolds v. United States (1879) and Employment Division v. Smith (1990) that neutral laws of general applicability may still apply to religious conduct.

Free speech protection is broad but not absolute. Schenck v. United States (1919) introduced the clear and present danger test, refined by Brandenburg v. Ohio (1969) to bar punishment of advocacy unless directed to incite imminent lawless action. Categories outside protection include true threats, fighting words from Chaplinsky v. New Hampshire (1942), defamation, and obscenity defined in Miller v. California (1973). Symbolic conduct such as flag burning was protected in Texas v. Johnson (1989).

Freedom of the press won its strongest victory in New York Times Co. v. United States (1971), the Pentagon Papers case, when the Court rejected prior restraint of newspaper publication. Freedom of assembly protects peaceful gatherings, marches, and protests, and combined with the right to petition it underwrites lobbying, public demonstrations, and ballot initiatives.

Originally the First Amendment bound only the federal government. Through the doctrine of incorporation, starting with Gitlow v. New York (1925) for speech and continuing through Cantwell v. Connecticut (1940) for religion and DeJonge v. Oregon (1937) for assembly, the Supreme Court extended these protections against state action by way of the Fourteenth Amendment Due Process Clause. For applicants preparing for the naturalization interview, naming all five freedoms in the correct order is one of the most frequently tested points on the civics exam.