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The First Amendment

“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.”(Kilman and Costello 1)

The first amendment to the US constitution guarantees various rights including the right to freedom of religion, and the right of freedom of expression (Cohen H 1). Perceptibly, the first amendment withdraws all legislative power, whether state or federal, from limiting the free exercise of religion and other forms of expression. In view of that, the first amendment has been the center of many debates along academic circles as it pledges for the protection of some of the most controversial rights. Most critics believe that its provisions can easily be manipulated for the protection of harmful practices that may infringe on other human rights. Supporters of this bill of rights, on the other hand argue that it reduces the level of government involvement in public affairs. However, the provisions in the first amendment have been the foundation for policy making in the United States for many years, and for that reason are critical components of the US constitution.

This paper presents an evaluation of the First Amendment of the United States Constitution. The paper examines its historical background and explains the implications of each of the provisions in the first amendment. The paper also provides some of the ethical concerns related to the first amendment, and provides recommendation on the same.

Historical Background

With regards to the legal sanction of the law into the US Constitutions, the first amendment dates back to the 25th of September, 1789. Though it was officially mandated 26 months later, the need for the first amendment was way overdue, owing to some of the US government practices at the time (Government Printing Office 1). Current literature on the first amendment explains that this bill of rights was aimed at eliminating arbitrary punishment that given for crimes related to seditious libel. Observably, the constitution at this time was not keen towards criticism of the government, and for that reason, a number of people and institutions suffered for this (Cohen C 257-65.). The existing political rivalries, that is, the federalist and the anti-federalists, were constantly in a tug-of-war regarding what was acceptable with reference to sentiments aimed at the government. Whereas the federalists did not condone government criticism, terming most comments as ‘scandalous’ and ‘malicious’, anti-federalists were in full support of such expression, hence the fall out between the two groups (Kilman and Costello 1). Accordingly, the first amendment was proposed as a solution to these constant fall outs between the federalists and the anti-federalists.

The US government consisted of mostly federalists, and for that reason, a number of individuals and groups were convicted before the endorsement of the first amendment into the US constitution. However, because crimes related to seditious libel did not cease to occur, the US government established the need for a solution to this before matters could get out of hand. The more people were prosecuted for such crimes, the more unruly the society became. The seditious libel offence gradually became a civil matter and was soon recognized as a civil affair, as opposed to, a criminal affair. Accordingly, the implementation of the first amendment granted utmost protection for the freedom of political speech, which was the basis for this bill of rights.

Analysis

As previously mentioned, the first amendment consists of two main components including the right to freedom of religion, and the right to freedom of expression. The former is further divided into two clauses including the establishment clause and the free exercise clause. The latter, carries the larger number of aspects including the right to freedom of speech, right to freedom of press, freedom of assembly and association, as well as, the rights to petition the government for the resolution of grievances (Kilman and Costello 1). Each provision in the first amendment serves to protect the rights to freedom of Americans on a different degree from the other.

Right to Freedom of Religion

The right to freedom of religion grants the freedom for establishment and exercise of religion by Americans and prohibits any interference by the government. With regards to the establishment clause, the US government is prohibited from passing legislation towards the establishment of one official religion (Government Printing Office 1).. Put simply, the US government is not allowed to favor or discriminate against any religions that its people choose to engage in. this clause emphasizes the need for the separation of the church from the state, and prohibits any constitutional declaration based on religion. The second clause, also referred to as the free exercise clause, supports the free exercise of religion by Americans. The key intent of this clause is to secure and encourage religious liberty of individuals by prohibiting any incursion by the law or legal institutions. This clause is guided by the notion of the freedom of conscience, and the government is prohibited from penalizing and discriminating individuals on the basis of their religious views.

Right to Freedom of Expression

The most crucial component of the right to freedom of expression is the freedom of speech. This clause supports that each individual express themselves freely with no interference from the government. In this clause, the right to free speech is recognized both as the action and as the medium through which communication is executed. Accordingly, if the government interferes with such freedom, it is expected to present substantial justification for this, hence allowing it to regulate the information passed in speech (Government Printing Office 1).. The right to freedom of press is the second provision under the freedom of expression and is often misunderstood to have a similar connotation to the right of freedom of speech. Basically, this clause allows individuals to express themselves through any form of publication in the press. However, it does not afford media workers any form of special rights that other citizens have not been granted thus reducing the probability of improper implementation (Cohen C 257-65.).

The right to assemble is also an added provision on the freedom of expression and it allows individuals to gather for legal and peaceful purposes. This clause also implies the right of association and belief but does not consider the right of freedom of social association. Put simply, this means that, the first amendment allows the government to prohibit people from associating in groups that are illegal and dangerous (Government Printing Office 1).. However, the government is prohibited from interfering with people’s rights to hold beliefs that belong to particular associations and groups. Lastly, the right to petition warrants people the right to seek help from the government to provide relief for an offence committed through the courts, as well as, any other government action. This is closely linked with the right of assembly as it allows individuals to work together towards a common good, more specifically a change in the government.

Ethical Concerns

Ethical issues associated with the first amendment regard the interpretation of this bill of rights, as well as, the execution of the same. This is mainly because it grants people free exercise of religion and expression, which in practice may bring about controversies (Tompkins 1). For example, issues related to religion are very complex, and so are the practices protected by the umbrella of religion. As religious analysts would explain, religion constitutes of beliefs and practices, and when it comes to identifying which practices are legal and illegal according to religion, a dilemma may arise. The free establishment and exercise of religion implies that whatever is classified as a religious belief or act is protected by the law, and for that reason, practices such as human sacrifices may be protected under this bill.

In addition to this, the first amendment exempts issues such as defamation, obscenity, and incitement with regards to the freedom of expression, and more specifically, the freedom of speech (Cohen C 257-65.). This, in turn, causes an ethical dilemma as to what may be considered as appropriate for free speech. Conclusively, the first amendment also poses an ethical dilemma when considering the issue of privacy. As per Supreme Court Justices’ acknowledgment, privacy is recognized as one of the constitutional rights that Americans are entitled to. However, because the first amendment guarantees political freedom, it does not recognize the level to which this freedom can infringe on personal privacy (Tompkins 1). Put simply, political freedom is seen as a threat to personal privacy, something that the first amendment does not fully recognize. By refusing to recognize this, the first amendment, therefore provides a leeway for the infringement of personal privacy in the name of political freedom.

Conclusion and Recommendation

The logic of the first amendment is comprehensible, as it seeks to protect individuals from government interference with their right to expression and religion. However, the first amendment lacks in providing a proper guideline for easy interpretation of this bill, and for that reason, does not fully live up to the reasons for its implementation. This is specifically because the first amendment can easily be translated to favor an individual who commits a crime under the pretence of right to religion and expression. Accordingly, there is need for the courts to re-evaluate the provisions in the first amendment so as to ensure that it is “appropriately” executed without violation. Accordingly, the first amendment should be revised, and upon this revision, should consider the “harm” principle when sanctioning this bill of rights. The revised first amendment should, therefore, consider the dangers of granting the freedom of religion and expression, thus give proper guidelines on what is moral and what is immoral. Nevertheless, the first amendment should be upheld as it constitutes a large portion of the policies that govern the United States of America. Without this, the US would be experiencing similar levels of chaos as those experienced during the revolution. This would, in turn, serve as the destruction of the American society as we know it today.

Works Cited

Cohen Carl. Free Speech and Political Extremism: How Nasty Are We Free to Be? Belmont,

California: Wadsworth Publishing, 1992. pp.

Cohen Henry. Freedom of Speech and Press: Exceptions in the First Amendment. Congressional

Research Service. 16 Oct, 2009. Web. 11 April, 2012. < http://www.fas.org/sgp/crs/misc/95-815.pdf>

“First Amendment: An Overview”. Cornell University Law School. 19 August, 2010. Web. 11

April, 2012.

“First Amendment: Religion and Expression”. Government Printing Office. 2 Oct. 1992. Web. 11

April, 2012. <http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-2.pdf>

Kilman, J. & Costello, G. The Constitution of the United States of America: Analysis and

Interpretation. Government Printing Office, 2000.

Tompkins, Paula. Exploring the Tension between the First Amendment and Ethics in the case of

“outing”. The electronic Journal of Communication. 1997. Web. 11 April, 2012. < http://www.cios.org/EJCPUBLIC/007/1/00711.HTML>

Introduction
The First Amendment forms the basis of almost all United States laws concerning the freedom of speech and press. It was adopted during 1971 as an integral element of the Bills of Rights. There have been subsequent meanings to initial outline of the First Amendment basing on court decisions and critical events that resulted to legal developments concerning the aspect of freedom of speech and sedition (Pember & Clay, 2011). The aspect of freedom expression as outlined in the First Amendment is based on a graduated system having dissimilar regulations that are subject to different scrutiny when making court decisions based on the First Amendment. This paper identifies and discusses three separate events or legal developments concerning the treatment of sedition in the American judicial system. The paper outlines the various ways through which the events or legal developments affected the limits of freedom of expression under the First Amendment to the United States Constitution.
Gitlow v. New York
Gitlow versus New York, case number US 652(1925) refers to a decisions undertaken by the Supreme Court in the US ruled that the certain provisions under the Fourteenth Amendment to the US constitution had extended the limits of the First Amendment regarding the protection of freedom of expression to the state governments (Pember & Clay, 2011). According to the first Amendment, the Congress shall make no law that infringes the freedoms of speech and press. It is important to note that the First amendment only emphasized on the Congress, and did not mention any actions undertaken by the governments at the local and state levels (Pember & Clay, 2011). It is apparent that the First Amendment does not offer any limitations or restrictions concerning the actions undertaken by state and local governments to infringe the people’s freedom of expression. This was the situation prior to the vase Gitlow versus New York, which challenged the applicability of the First Amendment on matters concerning freedom of expression by the government (Pember & Clay, 2011). The freedoms of speech and expression are important rights and liberties that have provisions under the due process found in the Fourteenth Amendment. For the first time, the US High Court hold the opinion that the applicability of the First Amendment was not only limited in the scope of federal government and the Congress (Pember & Clay, 2011).
The conclusions of the Supreme Court of the United States were different basing on the assumption that the freedom of speech and press are protected from infringement by the Congress under the First Amendment. In aIDition, the freedoms of speech and press are important individual rights and liberties that are protected from impairment by the states in the Fourteenth Amendment (Pember & Clay, 2011). As a result, the US Supreme Court linked the First and Fourteenth Amendment with a specific consideration towards the due process clause found in the Fourteenth Amendment which does not allow any form of deprivation relating to life, liberty and property by the state without following the due process of the law. It is important to note that the Fourteenth Amendment restricts the power of the states from infringing the freedom of expression (Pember & Clay, 2011).
The significance of the ruling in Gitlow versus New York is that it resulted to an acknowledgement by the US High Court that the Bill of Rights as provided for by the First Amendment has limitations concerning the actions undertaken by the state and local governments. It served as the first case to identify that the protections of the freedom of the press and speech as in the First Amendment applied to the state and local governments. Gitlow depicts that the freedom of speech and press has provisions in the Fourteenth Amendment, in what is referred to as incorporation doctrine (Tushnet, 2008). The clauses concerning freedom of speech and press outlined in the First amendment have been incorporated to the Fourteenth Amendment due process clause concerning the applicability of fundamental liberties in the state, local and federal governments (Pember & Clay, 2011). Presently, most elements of the Bill of Rights pertaining to the freedom of speech and press have provisions in the Fourteenth Amendment, implying that states, cities and the federal government cannot interfere with the matters relating to freedom of speech and press. This denotes the significance of Gitlow versus New York because it was the onset of realization of full measure pertaining to civil liberties for the United States citizens especially concerning freedom of expression (Pember & Clay, 2011).
Whitney versus California
Whitney versus California, case number 274 US 357 (1927) was one of the Brandeis sedition tests that had significant influences on the limits of freedom of expression. The US Supreme Court decision maintained the conviction of a person who used speed that had the potential of raising danger to the society (Tushnet, 2008). Anita Whitney was convicted basing on the Criminal Syndicalism Act of California State for aiding the establishment of Communist Labor Party, which had the intentions violently overthrowing the government (Tushnet, 2008). The synopsis of the rule of law was based on the provision that a state can restrict the forming of a group that encourages the use of crimes unlawful crimes to realize their goals that can raise a potential danger to the public interest. The principal issue during the case was whether the State Syndicalism Act served to infringe the rights of individuals as outlined in the First Amendment.
The Whitney versus California case most known for concurrence by Justice Louis Brandeis, and many scholars argue that it is one of the greatest and significant defenses towards freedom of expression to be written by a member of the United States high court. The concurrence was that no imminent danger accrued from speech can considered to be precise and present except in cases whereby the harmful effects will take place before there is a chance to evaluate and analyze the speech. Speech is only supposed to be restricted in cases whereby there is limited instances linked to dreadful emergency (Pember & Clay, 2011).
The Supreme Court of the United States offers a complete deference concerning the legislative intent of such activities and supposes a legitimate objective. Every individual in the United States has a right to freedom of expression, although this is not considered as an absolute right. This implies that there is a possibility that the state can limit a speech that potentially endangers the functioning of the government and interferes with the public welfare. Brandeis defended the speech basing on the connection that exists between freedom of expression and the process of democratization (Tushnet, 2008). It is important for citizens to play an integral role in the governing process, and this can only be achieved if they are given an opportunity to criticize the government without any fear. In case the government can administer unpopular opinions, then it infringes freedom of speech and subsequently impairs the process of democracy (Pember & Clay, 2011). Thus, according to Brandeis, freedom of expression is not only an abstract virtue but also an important element in a society that is supposed to be democratic (Strum, 1993). In concurring with the court’s decision, then state can administer punishments on speeches that have a bad tendency of likely initiating interferences in the welfare of the public and interferences on the normal government functions that can be used to initiate activities associated with government overthrowing (Tushnet, 2008).

Brandenburg v. Ohio
Threats directed towards the government are usually a significant impediment regarding the freedom speech and press. According to the First Amendment, the congress shall not pass a legislation that infringes freedom of the press and speech; the state and local governments are also required to adhere to this provisions concerning freedom of expression, in accordance with the due process clause found in the Fourteenth Amendment (Pember & Clay, 2011). The basic implication is that the government is restricted from administering punishments to an individual or an organization that speaks their minds (Strum, 1993). It is a common occurrence for governments to prevent any cases of revolts directed towards them. In the US, the freedom of expression protects the right that individuals have to criticize actions undertaken by the government and speak their opinions concerning the way the government should change its governance practices. The significant area of concern in such a scenario is whether individuals have right to direct violence against the government, or threaten the government. This was the area of focus during the case, which is discussed in the following section (Strum, 1993).
Brandenburg v. Ohio case number 395 US 444 (1969) was a case in the US Supreme Court that had a basis on the provisions of the First Amendment. The court claimed that the government cannot administer punishments directed towards inflammatory speeches except for cases whereby it is considered inciting and can result to lawless actions. From a narrow perspective, the court took precedence to the criminal syndicalism statute of Ohio that openly restricted sheer advocacy for violence. The superficial manner that the court ignored Brandenburg’s constitutional arguments is not surprising in the context of the First Amendment prior to the Brandenburg period (Pember & Clay, 2011). As a result, the United States Supreme Court turned around the conviction on Brandenburg, claiming that the government cannot administer punishment for advocacy of force basing on a constitutional basis. A notable outcome regarding the limits of freedom of expression after post-Brandenburg era is that the First Amendment offered provisions to protect speech expect in instances whereby it imposed instant violence and any other action that is considered unlawful (Pember & Clay, 2011).
The decision by the Supreme Court of the United States was reached after differentiating the two types of speech that are considered violent. The first type encourages instant violence that is directed towards the government. Such speech is dangerous and does not have provisions concerning the freedom of speech because it is too dangerous. Brandenburg on the other hand did not impose an instant violence. Brandenburg claimed that if the government continued offering support towards the civil rights movement, KKK clan might decide to seek revenge during a later time. According to the Supreme Court, such a speech is protected by the First Amendment. The decision by the Supreme Court was based on the fact that such a speech encourages the larger society to engage in constant dialogue regarding the good and the bad aspects of the government, and offers a framework through which people can explore what is currently deployed by the government and the core areas that require changes by the government. Despite the fact that the Court was not in concurrence with the opinions of Brandenburg, the court categorically stated that the freedom of expression offered protection to his right concerning sharing his viewpoints with other people (Tushnet, 2008).
The Brandenburg versus Ohio case made it difficult for the government to administer conviction against individuals who were speaking against it or in favor of violence. This was a boost for the freedom of expression. The significant question that is raised in this context is the kind of speech that the First Amendment guards. The Brandenburg test can be considered to the Supreme Court’s significant statement concerning the actions that the government can undertake when aIDressing inflammatory speeches that are likely to result to unlawful actions (Pember & Clay, 2011). The case served to resolve the pending disagreement between increased control of speech by the government on the basis of security and allowing speeches basing on diverse opinions to reach a favorable outcome. The case helped in substantially reducing sedition prosecutions.
References
Pember, D., & Clay, L. (2011). Mass Media Law. New York: Mc GrawHill .
Strum, P. (1993). Brandeis: Beyond Progressivism. Lawrence: University Press of Kansas.
Tushnet, M. (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press.