The First Amendment (Amendment I) to the United States Constitution prevents Congress from making laws respecting an establishment of religion; prohibiting the free exercise of religion; or abridging the freedom of speech, the freedom of the press, the freedom of peaceable assembly and the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights. In the original draft of the Bill of Rights, what is now the First Amendment occupied third place. The first two articles were not ratified by the states, so the article on disestablishment and free speech ended up being first.
The Bill of Rights was proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment. The First Amendment applies only to state actors.
With regard to religious freedom, the Court has frequently cited Thomas Jefferson's call for "a wall of separation between church and State", a metaphor for the separation of religions from government and vice versa as well as the free exercise of religious beliefs that many Founders favored. Speech rights were expanded significantly in a series of 20th- and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign finance, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times Co. v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
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 right to petition for redress of grievances was a principle included in the 1215 Magna Carta, as well as the 1689 English Bill of Rights. In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other twelve states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures' request, James Madison proposed twenty constitutional amendments, and his proposed draft of the First Amendment read as follows:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
This language was greatly condensed by Congress, and passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent. Congress approved and submitted to the states for their ratification twelve articles of amendment on September 25, 1789. The revised text of the third article became the First Amendment, because the last ten articles of the submitted 12 articles were ratified by the requisite number of states on December 15, 1791, and are now known collectively as the Bill of Rights.
Religious liberty, also known as freedom of religion, is "the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth." The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. Freedom of religion is protected by the First Amendment through its Establishment Clause and Free Exercise Clause, which together form the religious liberty clauses of the First Amendment.
The first clause prohibits any governmental "establishment of religion" and the second prohibits any governmental interference with "the free exercise thereof." These clauses of the First Amendment encompass the two big arenas of religion in constitutional law. "Establishment cases deal with the Constitution's ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans' rights to practice their faith." Both clauses sometimes compete with each other. The Supreme Court in McCreary County v. American Civil Liberties Union (2005) clarified this by the following example: When the government spends money on the clergy, then it looks like establishing religion, but if the government cannot pay for military chaplains, then many soldiers and sailors would be kept from the opportunity to exercise their chosen religions. The Supreme Court developed the preferred position doctrine. In Murdock v. Pennsylvania (1943) the Supreme Court stated: "Freedom of press, freedom of speech, freedom of religion are in a preferred position," adding that "[plainly], a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful." Writing for the Court, Justice Wiley Blount Rutledge in Thomas v. Collins (1945) described the freedoms secured by the First Amendment as occupying a "preferred place" in the constitutional system. The phrase “preferred position” later appeared in the Court’s First Amendment jurisprudence. In Kovacs v. Cooper (1949), Justice Stanley Reed, writing for a plurality, cited Thomas while referring to the “preferred position of freedom of speech in a society that cherishes liberty for all,” but concluded that this preferred position “does not require legislators to be insensible to claims by citizens to comfort and convenience.” Justice Frankfurter criticized the phrase in concurrence, arguing that Thomas did not establish that legislation affecting First Amendment rights was presumptively unconstitutional.