PART VII: FREEDOM OF EXPRESSION
The First Amendment is considered by some to be the single most important guarantor of the rights of Americans, and the key to successful democratic government. The amendment protects several rights -- freedom of religious practice, freedom from government-imposed religion, freedom of speech and the press, the right to assemble peacefully and the right to petition the government for redress.
These rights encompass all forms of expression, and the framers of the Constitution believed that in a democratic society, the right to express oneself without fear of government punishment was the basis of true and effective citizen participation in and control of the government. Thomas Jefferson believed that a free press, one that constantly monitored the activities of public officials, kept government from becoming tyrannical. Other commentators, from the eighteenth century on, picked up on this theme, and some of the most celebrated court cases in the nation's history have concerned the limits of free expression.
The colonists arrived in this country bringing with them English notions regarding the relation of church to society, as well as common law limits on speech and press. In England, and indeed in the rest of Europe, the notion of a single established church had been widespread for centuries. Both the ecclesiastical and the secular authorities were seen as agencies of God, with each supporting the other in carrying out their common duty. It made no more sense to have more than one religion in a society than to have more than one king; multiple religions, like multiple claimants to the crown, would do little but stir up antagonism.
When British settlers came to North America, they brought with them this idea of an established church, one which enjoyed a monopoly and the protection of the state, and which was supported by taxes imposed by the state. The Puritans who wished to escape what they saw as the corruption of the Church of England believed fervently in an established church -- but of their own beliefs. In Virginia and a number of other colonies, the Anglican Church enjoyed the same status in the New World as it did in the Mother Country.
But in America, unlike England, a number of competing religions vied with the Anglican Church for the loyalty of the settlers. Dissident sects who were persecuted for their heresies in the British Isles and on the continent came to the American colonies, where they preached their doctrines and gained adherents. By the time of the American Revolution, no one faith, even in colonies with established churches, really commanded the loyalty of a large majority of the people. But because there were so many groups, Americans necessarily learned to tolerate dissenting viewpoints.
Similarly, freedom of speech and press also underwent a transformation in the colonies. In England the law of libel had been very clear: if you printed a statement that attacked a person's reputation or impugned the integrity of a government official, you were guilty of libel, regardless of the truth or falsity of the statement. The libel trial of John Peter Zenger in 1734 made the first significant American modification to this rule. Zenger, accused of seditious libel, appealed to the jury to determine not just the fact that he had printed statements regarding the governor's conduct, but whether they were true; if true, he claimed, then he should not be held liable for having printed them. Zenger won, and now the truth of the statement could be entered as a complete defense to the charge of libel, a rule not adopted in the mother country until the nineteenth century.
But the notion of seditious libel, of statements impugning the authority of government, remained part of American law even beyond the adoption of the First Amendment. In 1798 the government passed the Sedition Law, which fully embodied English views, and in World War I the Sedition Act was passed to limit criticism of the government. Beginning with the war case of Abrams v. United States in 1919, the judiciary began to move away from the older British notions, and to adopt the modern American view that free and unhindered speech, no matter how offensive it may be to the government or to others, is to be the rule, and that there can be no government censorship of ideas.
The development of First Amendment rights is not complete. Contemporary social passions, varieties of religious beliefs and the strong feeling among many that religion ought to be supported by government, the built-in conflict between a press that wants to know everything and governments that wish to disclose as little as possible as well as the implications of modern technology for retrieving and disseminating information continue to make the debate over the meaning and limits of the First Amendment timely and of eternal importance to democratic society.
- Virginia
Statute for Religious Freedom
(1786)
- Abrams v, United States (1919)
- Whitney v. California (1927)
- Near v. Minnesota (1931)
- West Virginia Board of Education v. Barnette (1943)
- Engel v. Vitale (1962)
- New York Times Co. v. United States (1971
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