The First Amendment
A mobile application with this information for reviewing the First Amendment can be downloaded to your mobile device at http://m.magmito.com/113159/firstamend
About this app
This app was created by James Glen Stovall, professor of journalism at the University of Tennessee. It is distributed by the Intercollegiate Online News Network (ICONN) and the Interscholastic Online News Network (ISONN).
What it says
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.
Like every other part of the U.S. Constitution, these words have received extensive interpretation from courts and other commentators. They have come to mean things to Americans that go beyond the words themselves.
The First Amendment was written by James Madison, the chief author of the U.S. Constitution and the man who would be become president of the United States in 1809.
As you can tell from reading it (and you should read it carefully), the First Amendment names the freedoms that are important to society: religion, speech, press, assembly and petitioning the government.
Because of the freedoms included, the First Amendment can be seen as the description of the ‘open society’ that many of us assume for our civil life.
How we got the First Amendment
Dr. Dwight Teeter of the University of Tennessee explains how we got the First Amendment.
What it means
One of the things most people agree on is that the First Amendment prohibits prior restraint. This means that government officials cannot prevent things from being printed, broadcast or posted on the web. There is no “Office of Censorship” in the United States, and the government has only rarely stepped in to prevent publication.
Despite this strong tradition, there are those who want to try to solve societal problems by restricting the freedoms. Campaign finance laws, for instance, contain provisions that restrict participation in political campaigns, and many people believe that these restrictions are violations of the letter and spirit of the First Amendment.
Journalists should always be aware of – and should oppose – efforts to “solve problems” by demanding that freedom be restricted, especially First Amendment freedoms.
The First Amendment has meaning and effect beyond prohibiting governmental censorship. It has come to mean that there are positive rights that individuals in society have. These rights have evolved over many years and through court decisions and practices of society.
Here are a few of the positive aspects of the First Amendment:
— enabling the right of people to speak and the process of speech;
— recognizing, to some extent, the value of symbolic speech, using symbols, actions rather than spoken words;
— recognizing the value of offensive speech – speech that people do not agree with or that offends beliefs, attitudes, public values, such as
• criticizing the president and other government officials
• burning the flag or a draft card
— understanding that restricting speech in one area can lead to restrictions in other areas;
— enabling the processes of the press, particularly reporting and publishing;
— fostering open government and the public’s “right to know” what their government is doing through laws mandating public meetings of government officials
— information that businesses must disclose
— reporters protection of sources and information
Why the First Amendment matters
The First Amendment stands as America’s most profound statement that government should not intrude on an individual’s beliefs, thinking or expression. In fact, government should – in many important ways – be subordinate to individuals.
The First Amendment provides a legal underpinning to the way American society is supposed to operate.
We assume that we should be able to say and write whatever we want, that we can associate with whomever we want, that we can attend or not attend the church of our choice, and that we can complain when the government does something we don’t like.
These assumptions would not be so easily accepted if the First Amendment did not exist.
Freedom of speech
If the First Amendment means anything, we believe, it means that we have the right to speak our minds — to say what we think, right?
But it wasn’t always so.
In the early days of the republic, laws were passed that protected the president and administration from criticism.
Alien and Sedition Acts
Dr. Dwight Teeter, professor at the University of Tennessee, talks about the Alien and Sedition Acts during the John Adams administration.
In the 19th century, the First Amendment did not mean what it means today. Many states had laws restricting the freedom of speech, especially in the South where is was against the law to advocate abolition (freeing slaves).
of the First Amendment
The right to publish
This part of the First Amendment
‘. . . or of the press . . .’
has generated a great deal of debate and much litigation throughout the history of the republic.
Just what did the founders of the Republic mean by that? How have we interpreted that phrase since it was originally written?
Answers to those questions have filled many volumes, but generally we believe that the government should not censor printed material; that it should not exercise prior restraint (preventing something from being printed or distributed) on publications; and that it should not hinder the distribution of printed material.
In journalism, this freedom extends to the practice of journalism itself. Reporters should be able to gather information. Government bodies – courts, legislative units, boards, etc. – should operate in the open. Government records should be available to all citizens who request them. In some cases, reporters are protected from disclosing their sources because of this clause in the First Amendment.
You can read more about the First Amendment’s freedom of the press clause in this article by Lee Levine on the First Amendment Center website.
Two important areas where the freedom to publish is limited are
Libel or defamation
Libel – the concept that words can harm a person’s reputation – is an ancient principle of common law. A person’s reputation has value, and when that value is diminished, a person can see redress from the courts.
Yet there is the First Amendment, which says society has value in being able to speak freely. How do we resolve this conflict?
Despite the language of the First Amendment, libel laws exist and are, occasionally, enforced. Journalists must be careful about libel.
Modern defamation laws say that to win a libel case, you must prove
• publication (more than just two people have to see/hear it)
• identification (can the person defamed be identified)
• defamation (did the words have potential to do real damage)
• fault (was there negligence or some mitigation)
• harm (is there provable damage)
Defenses against defamation
Statute and case law provide some strong defenses for people facing libel actions:
• truth – powerful defense (society values truth)
• qualified privilege – is the situation one that relieves people of libel responsibility? Reporters depend on the concept of qualified privilege to report public affairs. For instance, they may report the arrest of a person who is ultimately is declared innocent of a crime.
• absolute privilege – Some instances, such as a legislator speaking in a meeting of the legislature, can say anything he or she wishes without regard to libel laws.
• statute of limitations – Courts do not like old cases, particularly in civil matters. Many states have a statue of limitations provision that says a libel suit must be filed within two years of the alleged libel.
• Constitutional privilege – This privilege protects news media from suits by public officials and public figures. It comes from a 1964 decision, New York Times v. Sullivan.The results of this case make virtually impossible for any well known figure to recover damages in a libel action.
Still, the threat of the costs of litigation are real, and journalists should be careful to avoid them if possible.
Copyright and trademark
The freedom to write and publish is not unlimited.
One area in which that freedom is limited is that of copyright and trademarks, which are part of a larger area of law known as intellectual property. People who create what we might term generally as “intellectual property” – books, musical works, art, sculpture, articles, poems, etc. – have some protection in the way that those works are used by others. If you draw a picture or write a poem, that picture or poem is yours (at least for a limited amount of time), and no one else can reprint it without your permission.
There are things that copyright does not cover, however.
Facts cannot be copyrighted. Let’s say you are the only writer covering your high school basketball game, and you write a story about it for the high school paper. Another publication can take the facts that you have described – the details of the game, the score, etc. – and use them in its description of the game.
That publication, however, cannot use your account of the game. The expression of facts can be copyrighted, but the facts themselves cannot.
Like facts, ideas cannot be copyrighted, but the expression of those ideas can. For instance, you can paint a picture of a tree, and that painting will be copyrighted. Someone else can paint a picture of the same tree. That’s ok, as long as they do not use your painting.
The protection of a copyright is limited in two important ways. One is that it does not last forever. Currently, copyrights last for the life of the creator, plus 70 years. If the copyright is owned by a corporation, the copyright lasts longer. A copyright does not last forever. At some point, all creative works become part of the “public domain”; that is, everyone owns them. Consequently, the works of William Shakespeare, for instance, are in the public domain, and Shakespeare can be quoted at length without anyone’s permission.
The second limitation of copyright is through the concept of fair use. This concept has been developed to encourage the dissemination of ideas and information without either putting a great burden on the user or infringing on the rights of the creator of the work. Fair use means that in certain limited circumstances, a copyrighted work – or more likely, some portion of it – may be used without the permission of the holder of the copyright.
Courts have looked at four things in considering what is fair use:
— the nature of the copyrighted material – how much effort it took to produce it;
— the nature of the use – for instance, material used in an educational setting for educational purposes is more likely to be thought of as fair use;
— the extent of the use – how much of the copyrighted material is used, just a few words or a whole passage;
— commercial infringement – most importantly, how much does the use hurt the commercial value of the work.
Unless material is being used in a very limited way, you should always get permission to use copyrighted material. Holders of copyright can be very aggressive about enforcing their copyrights, and the unauthorized user of a copyright can be fined substantially. Many people in education believe that they can use any material in any way they wish, and it will be considered fair use. That is not the case. Educators are bound by copyright laws as much as anyone else.
Note: Material on the Internet has as much copyright protection as anything else. Some people believe that whatever is on a web site is in the public domain, and that is not the case. Just because material is easy to access does not mean that it does not have copyright protection.
A special protection for the commercial use of words, phrases and symbols is trademark.
Many companies go to great lengths to protect their trademarks because that is how the public identifies their products. What if, for example, a shoe company named Nuke started using the Nike symbol, the swoosh, on its shoes? Consumers might become confused about what product to buy, and Nike, which holds a trademark on the swoosh, might be hurt by that.
Right of assembly
Courts have almost always recognized that governments have the power to regulate time and place of assembly when the public’s safety and convenience is an issue.
But governments are prevented from saying to a group of people that they cannot meet when the reason for their meeting is legal.
According to the First Amendment Center:
First Amendment freedoms ring hollow if government officials can repress expression that they fear will create a disturbance or offend. Unless there is real danger of imminent harm, assembly rights must be respected.
Read more about the freedom to assemble.
Freedom of religion
Actually, many of them came because they wanted to practicetheir religion freely. They did not care about the right of people outside their own groups to observe a different set of beliefs.
During the colonial years there was a much religious intolerance and state supported religion practice as there was in England or any place else in Europe.
But that began to change in the late 18th century, particularly through the writing and efforts of Thomas Jefferson, who challenged the government’s role in religious observance.
Today, through many events and court cases, we have developed some fundamental understandings about what the words of the First Amendment mean (sometimes referred to as the ‘establishment clause’):
• Individuals have the right to believe, practice religion, and worship as they see fit.
• Individuals are not required to support any religion or religious organization.
• The government cannot establish or support any religious organization.
• The government must remain neutral in dealing with religious organizations and beliefs.
Even with these fundamental understandings, there are still many controversies and issues surrounding the First Amendment’s guarantee of freedom of religion and of the state neutrality toward religion. For instance, consider these:
— prayer in schools
— posting the Ten Commandments in government buildings
— requiring the recitation of the Pledge of Allegiance in schools
— blue laws
— putting Christmas decorations on public property
The list could go on.
The First Amendment Center has an extensive set of articles on these and other issues regarding freedom of religion.
Petitioning the government
When an individual
• calls the tax assessor’s office to complain that property taxes have gone up too much,
• attends a town meeting public officials and policies are questioned,
• joins a legal street demonstration to gain publicity for their cause,
• pays a lobbyist or joins a group that pays someone to go to Washington or the state capital to argue for a cause,
then that person is petitioning ‘the Government for a redress of grievances’ – a right protected by the First Amendment.
The right to petition the government was very much on the minds of the Founding Fathers. As colonists, they had asked King George III and the government in London many times to pay attention to what they wanted. Mostly, the people in England ignored them.
So, when it came time to write the Declaration of Independence, they included the following in their reasons for declaring independence:
In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.
Governments in the U.S. do not have to agree with the petitioner or do what he or she asks. But they must listen.
And they cannot retaliate against the petitioner for asking.
Compared to the other parts of the First Amendment, the right to petition the government has not generated much litigation or attention among scholars over the years. Perhaps, according to Adam Newton, writing for the First Amendment Center, that is
because it continues to work so well. The petition clause is the tacit assumption in constitutional analysis, the primordial right from which other expressive freedoms arise. Why speak, why publish, why assemble against the government at all if such complaints will only be silenced?
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