The First Amendment

The First Amendment’s world-leading protection for the freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right to petition the government for the redress of grievances is arguably the defining factor of our American system of government. 

While the United States is only one among many dozens of our world’s representative democracies, the First Amendment as interpreted by the Supreme Court of the United States represents the world’s most comprehensive guarantee of the fundamental human rights of the people to speak, write, worship, and protest. 

A full discussion of how the First Amendment came to be would fill many volumes, but to understand the context in which it came about, let’s take a brief look at the who, what, when, where, and why of the First Amendment.

What are the rights protected by the First Amendment?

The text of the First Amendment is the following:

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.

However, there are several basic things you need to know about what each of these phrases mean and how they are interpreted today.

First, the admonition that “Congress shall make no law” abridging these rights is best thought of to mean “No agency of the government may pass or enforce any law or rule.” Restrictions on Congress also apply to federal agencies, while after the adoption of the 14th Amendment in 1868 and through the court cases that followed, state and local governments and agencies are also bound by it (a process known as “incorporation”). As a result, in the United States, neither federal, nor state, nor local government or agencies — from Congress itself all the way down to the folks who run your town’s public pool — can strip you of your First Amendment rights.

Second, the rights specifically listed (or “enumerated”) in the First Amendment can be umbrella terms that modern Americans may more often discuss using different terms or categories. The following are among the most common modern equivalents to each clause of the First Amendment:

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” — Today we generally call this “freedom of religion,” and we split it into two parts. The first is the Establishment Clause, which prevents the government from establishing official religions and forcing people to support them. The second, the Free Exercise Clause, protects the right to believe in any religion, or no religion, and the right to practice that religion in the way we choose, or practice no religion at all.
• “or abridging the freedom of speech” — Freedom of speech means the right to be free of government punishment for what you say. Freedom of speech also includes “freedom of expression,” another common phrase, that makes it clearer that something you want to communicate does not have to be literally spoken to be protected by the First Amendment. Most obviously, written communication that is never spoken (like a letter or text message) is considered “speech” by the First Amendment, but so are other forms of expression, including artistic expression (a painting is protected by the First Amendment even if there are no words on it) and symbolic expression (like burning a flag or wearing a black armband).
• “or of the press” — Virtually everyone has heard of “freedom of the press.” While this has a great deal of overlap with “freedom of speech,” this protection emphasizes that Americans may not be restricted to talking only to people within shouting distance — that government also may not act to prevent you from spreading your message more broadly, such as in a book, newspaper, blog, or on social media.
• “or the right of the people peaceably to assemble” — This provision protects what today we would call the “right to protest” and the right to “free association.” The first of these means that governments must allow (or have a fair permitting system for) protests in outdoor public places like streets and parks, and cannot reject or shut down a protest because of its message, so long as the protest is peaceful. The second protects Americans’ right to assemble as everything from groups of friends to massive organizations, formal or informal, without being told that they may not have contact with one another or work together towards a common goal.
• and to petition the Government for a redress of grievances.” — History provides many examples of government officials (including Britain’s then-King George III) refusing even to read or receive complaints, or retaliating against people simply for making a complaint, in order to avoid having to address serious problems. The “right to petition” means that government officials cannot prevent Americans from contacting them in order to make their complaints heard, or punish them for trying to do so. 

Finally, First Amendment rights, though the most expansive of those of any nation, are not absolute. Freedom of speech itself has a number of exceptions, many dictated by common sense. For example, you can be punished for using your expression to defraud your customers, engage in criminal conspiracies, or produce child pornography. Your right to practice your religion does not include the right to engage in human sacrifice. And your right to petition the government does not include the right to barge into the Oval Office whenever you like. But while there are any number of exceptions, the general rule in the United States is that when in doubt, the government cannot punish you for your speech.

Who does the First Amendment protect?

The First Amendment protects every person in the United States from government infringements on their rights, though the degree of protection can vary. By far the most important distinction is based on age, as public K-12 schools, which are agencies of the government, can limit some – but certainly not all – speech by their students, according to the Supreme Court. 

When was the First Amendment proposed?

The finalized text of the First Amendment and the rest of the Amendments that would become the Bill of Rights were officially proposed in a joint resolution of Congress on Sept. 25, 1789, and sent to the states for ratification. 

Twelve amendments were proposed; the language of the First Amendment is listed in the resolution that became the Bill of Rights as “Article the third.” However, it was the first of the articles that dealt with individual rights. (The two proposed amendments that preceded it dealt with setting the number of constituents per Congressional representative and with when Congressional pay raises were to take effect. These were not ratified along with the other ten, though “Article the second” was eventually adopted as the 27th Amendment — in 1992.)

But Congress may not amend the Constitution alone. When Congress proposes a Constitutional amendment, the legislatures of three-quarters of the states must ratify it in order for it to take effect. This meant that 11 of the then-existing 14 states (Vermont had joined the original 13) needed to approve the First Amendment. 

Who authored the First Amendment?

The first version of the language that would become the First Amendment was introduced in Congress on June 8, 1789, by Virginia Rep. James Madison. The Congressional Record for that day records the speech Madison made accompanying his introduction of the language that would become the Bill of Rights, and explaining his position. Madison, who went on to become the fourth President of the United States (1809-1817) is generally credited as not just one of the “founding fathers” of the United States, but as one of the primary authors of the U.S. Constitution. 

Madison and Congress did not need to start from scratch in writing the First Amendment. Language in the constitutions of a number of states, prominently including the Virginia Declaration of Rights in Madison’s home state, protected the religious and expressive rights of citizens. Both Madison and the other members of Congress who worked on the language were therefore very familiar with how such protections might look. However, no legal provision in force at the time exactly parallels the combination of rights protected by the First Amendment.

Ultimately, the final language of the First Amendment and the rest of the Bill of Rights was determined through the committee process in Congress. Madison’s language was assigned to a House select committee called the Committee of Eleven, which made changes to the language, which the House passed. The Senate then made further changes. 

When did the First Amendment take effect?

Article V of the Constitution states that an amendment becomes valid when ratified (approved) by the legislatures of three-fourths of the states. The First Amendment therefore became part of the Constitution on Dec. 15, 1791, when Virginia ratified it along with the nine other amendments that make up the Bill of Rights. Virginia was the 11th state to do so out of the then-14 states, putting the First Amendment past the three-fourths mark. Prior to Virginia, the legislatures of New Jersey, Maryland, North Carolina, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, Rhode Island, and Vermont had all met and agreed to ratify the ten amendments that would become the Bill of Rights.

The holdouts were the states of Massachusetts, Connecticut, and Georgia. Their legislatures stopped trying to ratify the Bill of Rights once they went into effect, and all following states would be admitted to the Union with the First Amendment already in place. But believe it or not, that wasn’t the end of the story! In 1939, for the 150th anniversary of Congress’s approval of the Bill of Rights, state legislators in Hartford, Boston, and Atlanta all finally ratified the First Amendment and the rest of the Bill of Rights. 

Where was the First Amendment written?

Even though the First Amendment was proposed by Congress, that didn’t happen in Washington, D.C. (which did not yet exist), or even in Philadelphia (the birthplace of the Declaration of Independence and Constitution). In June of 1789, when Congressman James Madison proposed the initial language that would ultimately become the First Amendment, Congress was meeting at Federal Hall, located at 26 Wall Street in New York City, which was temporarily serving as the capital of the United States. On Sept. 25 of the same year, it was also in New York City that Congress would pass the joint resolution sending the Bill of Rights to the states.

Why do we have a First Amendment?

The simple answer is that the First Amendment and the other nine amendments in the Bill of Rights were added in order to make it abundantly clear that the particular rights they discuss belonged to either individual people or to the individual states, and could not be infringed upon by the new federal government.

The idea of adding a Bill of Rights to the original Constitution in 1787 was briefly discussed, but rejected. At the time, most delegates believed that adding it was not necessary, and some worried that listing specific rights might imply that those were the only rights that would be protected. However, the lack of a Bill of Rights became a serious matter of debate as the states considered whether to ratify the new Constitution. Figures like Thomas Jefferson and George Mason believed the specific guarantees were necessary protections. On the opposing side were James Madison and the other people who would become known as the Federalists. They expressed no real disagreement about the existence and importance of those rights, but continued to think that explicitly listing them was unnecessary and possibly a bad idea. Madison and Jefferson engaged in a famous correspondence on the Bill of Rights that showcases their views.

Ultimately, the two sides reached what became known as the Massachusetts Compromise: reluctant representatives from the states were promised that a Bill of Rights would be proposed in the very first Congress. Congress was true to its word and despite originally opposing a written Bill of Rights, Madison himself, a newly elected Congressman from Virginia, became its primary author and sponsor, fulfilling the bargain.