The First Amendment

March 28th, 2017

In the news

As I began my research for this topic, I talked with a friend who had served on the board of a nonprofit concerned with the First Amendment. He told me about a college course he’d taken on the First Amendment many years ago. Every now and then, the professor would bring in a stack of newspapers and magazines and invite students to search for stories that mentioned the First Amendment. The task was quite easy, which served to reinforce the professor’s point: Stories about First Amendment rights are a regular feature of the news.

In the last year or so, these stories seem to be appearing with increased frequency. Two recent examples involve the right to peaceful assembly and the freedom of religion.

These past few months, the number of mass protests has grown to a level not seen in more than 40 years. The United States has seen demonstrations over a North Dakota pipeline, protests after a police-related shooting in Minnesota and the Women’s March in Washington, D.C. In response, legislatures in 18 states are trying to discourage protests in ways that raise debates about free speech and public safety. In Minnesota, legislators are attempting to increase fines for blocking airports and highways. In North Dakota, the governor signed four bills designed to control protests like the one staged in opposition to the Dakota Access pipeline. In other states, there are bills calling for everything from prison time for blocking roadways to the seizure of assets from those involved in violent protests. Some of these bills would declare drivers free of liability if they accidentally hit protesters blocking a street.

On March 8, Hawaii filed a lawsuit seeking to block President Donald Trump’s revised executive order preventing citizens of six Muslim-majority countries from obtaining new visas. Hawaii argues that the ban inhibits the ability of state businesses and universities from recruiting highly qualified employees and financially harms the state’s major economy — tourism. As of this writing, New York, Oregon, Minnesota, Massachusetts and Washington also plan to file lawsuits. Both Hawaii and Washington contend that the revised ban is a version of the Muslim ban that Trump promised during his campaign. They argue that this violates the establishment clause of the First Amendment, which forbids the federal government from favoring or disfavoring any particular religion.

First Amendment rights

Freedom of speech and freedom of expression form the bedrock of democracy and are essential to its functioning. In one sentence, the First Amendment states the core principles that define freedom in the United States: “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.” The First Amendment is part of the Bill of Rights, which consists of the first ten amendments to the Constitution and contains guarantees of individual freedoms and limits upon governmental control and intervention.

Although the First Amendment is only one sentence long and written in simple language, its meaning has been the subject of numerous court cases. Most of them have involved weighing public concerns, like security, against private concerns, like personal expression. Many have involved “at risk speech,” which is unprotected by the First Amendment. Examples of at risk speech include “fighting words” used to incite imminent violence, words that immediately jeopardize national security and libel.

The Fourteenth Amendment

Prior to and during the Civil War, many slave states disregarded the First Amendment and censored the writings, pamphlets and speeches of abolitionists. Their dismissal of those protections was based on the vague wording of the First Amendment compared to the wording in the other amendments in the Bill of Rights.

Their argument was based on the first words of the amendment — “ Congress shall make no law . . .” — which they interpreted to apply only to the federal government, not the states. In 1865, Congress ratified the Fourteenth Amendment as a rejection of this interpretation and made the First Amendment binding upon all government below the federal level. The Fourteenth Amendment defined citizenship and adjusted the U.S. Constitution to reflect post-Civil War realities. Most significantly, the amendment guaranteed due process of law and equal protection of the laws on the state level as well as the federal.

Christian faith and First Amendment rights

Just as American citizens have differing viewpoints on the meaning of the First Amendment, Christians have different views on faith that affect their interpretation of First Amendment rights. In the two examples cited in the introductory paragraphs, competing values are involved that have resulted in differing interpretations of the First Amendment. For Christians, these competing values may be based on different interpretations of Scripture and tradition.

In the case of states placing limitations on the right to protest, many civil liberties advocates are framing them as an assault on free speech. Noting that these bills have been introduced only by Republican lawmakers, advocates are concerned that the bills, if enacted, could be used by those in power to silence opposition. In a recent Washington Post piece, Christopher Ingraham said that judging from the response to his article, public sentiment about these bills is “all over the place” and generally split down partisan lines. “You have half the folks saying, I was driving home the other night and I was stopped by a protest on the highway and it took me six hours to get home, and it was a huge headache, and I think we really need this legislation. And then I hear from people who say, look, I have been to some of these protests. I’m infuriated that lawmakers are trying to crack down on this, and this only strengthens my resolve. It makes me more likely to go out there and protest some more.”

People of faith come down on both sides of the issue. Some favor these bills for reasons of public safety, and others see the bills as curbing freedom of speech. The United Methodist tradition has upheld the right of individuals to dissent in its Social Principles, but it also insists that dissent be nonviolent. Paragraph 164.F, “Civil Obedience and Civil Disobedience,” states that “citizens have a duty to abide by the laws duly adopted by orderly and just process of government. But governments, no less than individuals, are subject to the judgment of God. Therefore, we recognize the right of individuals to dissent when acting under the constraint of conscience and, after having exhausted all legal recourse, to resist or disobey laws that they deem to be unjust or that are discriminately enforced. Even then, respect for law should be shown by refraining from violence and being willing to accept the cost and size of disobedience. We do not encourage or condone any form of violent protest as a legitimate exercise of free speech or civil disobedience.”

In the case of President Trump’s revised executive order, critics say it violates the First Amendment just as the first one did. Some people of faith will agree that this revised ban is contrary to the principle of freedom of religion, and others will say that the ban is to protect national security and doesn’t favor one religion over another.

Our stance in examples such as these are based not only on our different interpretations of the First Amendment, but also on our different understandings of the Christian faith. How do we as individuals, communities and congregations weigh our competing values as we pray that God’s will be done on earth as in heaven and as we interpret the First Amendment?

Be sure to check out FaithLink, a weekly downloadable discussion guide for classes and small groups.

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