What Is the First Amendment?
The First Amendment is the first of the original 10 amendments that constitute the Bill of Rights in the United States Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791. The First Amendment protects a number of fundamental rights for Americans—freedom of religion, speech, press, assembly, and petition.
Freedom of religion is enshrined by the First Amendment clause that prohibits the government from establishing a religion and allows people the free practice of religion. The First Amendment also grants the basic rights to freedom of speech and of the press that are vital for a functioning democracy. It protects the rights of people to assemble peacefully and to petition the government for a redress of grievances. The First Amendment is a hallmark of the conception of limited government.
- The First Amendment to the U.S. Constitution establishes the freedoms of religion, speech, press, assembly, and petition.
- Collectively these freedoms are known as “freedom of expression.”
- The First Amendment is a key part of the Western liberal conception of limited government.
Understanding the First Amendment
The five freedoms that are guaranteed by the First Amendment are often referred to collectively as “freedom of expression.” From the 20th century onward, many individuals and entities have legally challenged the government when they believed their rights were under attack. In response to these legal challenges, courts ranging from the U.S. Supreme Court to federal courts of appeals, district courts, and state courts have issued judgments in landmark First Amendment cases.
The First Amendment, however, is not absolute. That is why there are prohibitions against knowingly false statements (libel laws), obscenity, and inciting violence. You cannot, for instance, yell “Fire!” in a crowded theater.
The First Amendment protects against the government penalizing expression, but it does not protect against businesses doing so.
Examples of First Amendment Cases
Many of these cases deal with freedom of speech, which is often viewed as the foundation on which the other First Amendment freedoms are based.
Schenck v. United States
This 1919 case was a landmark in this context. Charles Schenck was an antiwar activist during World War I who was arrested for sending leaflets to new armed forces recruits and enlisted men that urged them to ignore their draft notices. The Supreme Court affirmed the defendant’s conviction on the grounds that Schenck was a threat to national security through his attempts to interfere with recruitment and incite insubordination in the armed forces. In his ruling, Justice Oliver Wendell Holmes defined a “clear and present danger test” to determine whether speech is protected by the First Amendment in such cases. This established the principle that an individual who is a “clear and present” danger to U.S. security would not have the right to free speech.
In a business context, the right to free speech often causes the greatest controversy. In the workplace it gives rise to questions such as whether an employee can be fired for participating in a political rally or for speaking to the press about work conditions. In a more modern context, can someone be terminated for a non-work-related post on social media?
Google Employee Firing
A case involving search giant Google Inc. in August 2017 provides a good example. A Google employee posted a 10-page memo to an internal company forum arguing that women were underrepresented in the tech industry because of “biological causes” of differences between men and women, and it criticized the company for its diversity and inclusion initiatives. The memo was subsequently leaked to the media, setting off a firestorm of outrage and a heated debate about the limits of free speech in the workplace.
The employee was fired shortly thereafter because the memo violated Google’s code of conduct and crossed the line “by advancing harmful gender stereotypes,” according to Google’s CEO. What many people don’t understand is that, as the Washington Post put it at the time of the firing, “the First Amendment protects people from adverse actions by the government, but it does not generally apply to actions by private employers.” There is, after all, no guarantee of employment in the U.S. Constitution.
The employee and several other employees with similar issues sued Google in January 2018. The case is still pending, though some initial employees, including the writer of the memo, are no longer part of it. In June 2019, a Santa Clara County Superior Court judge refused to dismiss the case, as Google had requested.