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Reflection on First Amendment

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Being free is not limited on declaring independence. It I not also measured by living in a democratic country. Freedom is measured by the bound and how far can a man exercise his right granted by the Constitution. One of the most celebrated right is the conferred by the First Amendment. This paper will explain the three basic rights contained in the First Amendment and further cite cases to illustrate it. Furthermore, it will also discuss the challenges of the exercise of such rights.

            Freedom is the very essence of democracy. When America was emancipated from the British control, it celebrated its independence. The Independence that was celebrated was not merely because America can put up its own government and can do its own activities without foreign intervention. Through the years, the essence of independence was not felt by many citizens due to acts and practices that restrain a citizen from living freely. Being free was not merely living the way you want without dictations from other foreign people. It does not also constitute free when own government have been put up. Through the years, the essence of being free was seen as being free to exercise one’s right in the enjoyment of life. Democracy would even be useless when the citizens are prohibited from practicing their chosen career or proscribed from speaking their minds. Hence, being free or truly independent in a democratic country means to exist and act in ways wanted without impediment from government.

            Real independence in America could be said to have been experienced at the adoption of the First Amendment. The First Amendment 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” (US Constitution Online, 2008).

            Among the provisions of the Constitution, the First Amendment is considered as one among the very important provision ever introduced as it establishes and acknowledges the basic human rights.  Such human rights bestowed upon citizens by the First Amendment includes right to religion, right to speech, and of the press. In addition, it builds the foundation where citizens can be protected from government’s encroachment or abuse. As to humans, there is no greater freedom that can be afforded than the freedom to tell one’s thoughts or express his opinion with regard to government policies. Another is the freedom to satisfy one’s spiritual needs by freely exercising his spiritual belief. These rights would not be completed without the right of the press to expose the government’s activities and making it known to the people. Notably, the press is considered as the fourth branch of the government (US Constitution Online, 2008).

It is noteworthy to state the historical arduous struggles that the First Amendment had gone through. The fight for religious freedom has its evolution since the evolution of man. Religion has also been inculcated in the Constitution because of human’s attachment to spirituality. As usually said, religion is the opium of the people. It is through religion that one exercises his faith and to express his acknowledgment of his Creator. As such, religion cannot be separated from one person.

The evolution of the right to religion was influenced by the establishment of state religion in England. The intolerable establishment of religion had forced migration to American colony. Significantly, religious freedom was founded on the belief of American people that religion and state can never harmoniously unite and poses danger (Jurinski, 2003). This belief was formed from the practices in the past where the government favored a particular religion against the other and can be recognized by an official stamp (Jurinsky, 2003). Eventually, the Framers of the Constitution founded the Establishment Clause and the Free Exercise Clause embodied in the First Amendment (Linder). The Establishment Clause intends to prevent the government from financially supporting a national religion while Free Exercise Clause gives the citizen the freedom to exercise their religion (Linder).

The case that would best illustrate the First Amendment as to non- establishment of religion or the Establishment Clause is the case of Zelman, et. al. v. Simmons-Harris, et. al. (536 U.S. 639). In this particular case, the taxpayers of Ohio challenged the constitutionality of the Ohio’s Pilot Project Scholarship Program (536 U.S. 639). Basically, the program is purposely to provide tuition aid for students in the Cleveland City School District, especially those belonging below the poverty line (536 U.S. 639). The program has been adopted in order to repair the worsening performance of the public schools. The parents can choose from the participating schools where they could enrol their children or spend their tuition aid. Notably, the program has been opened to public, private, religious and non- religious schools. During the implementation of the program, more religiously affiliated schools participated than public schools. In addition, more students enrolled in these religiously affiliated schools than in public schools (536 U.S 639).

While the program was ongoing, taxpayers of Ohio challenged it alleging that it violated the Establishment Clause on the basis that the vouchers used or the financial aid was used in religious schools. The issue raised was the Constitutionality of the program granting tuition aid and using it in religiously affiliated schools (536 U.S 639). In the Court of Appeals, the program was struck down for being an “unconstitutional advancement of religion” (Godwin & Kemerer, 2008, p.14). An appeal to the highest court was made.

The Supreme Court resolved the case by declaring the program to be Constitutional. In arriving at such conclusion, the Supreme Court held that the purpose of the government aid is to financially assist children in their education and the system was adopted because of the failing school system of public schools (536 U.S. 639). In addition, the government aid program has been granted directly to general class of citizens (536 U.S. 639). The Court found that the program do not directly advance a religious purpose. In defeating the taxpayers’ allegation that the program has been used to support religion, the Supreme Court held that the parents have liberty in choosing where to enrol their children. The decision of parents who enrolled their children to religious affiliated schools is brought by their genuine and independent private choice (536 U.S. 639). Moreover, the Court reiterated that the program is neutral and its function is only to distribute the benefits. The neutrality of the program is evident by the open participation of all schools. Having seen the zealous purpose of the program and the absence of danger it poses to Constitutional provision, the Supreme Court concluded the program as Constitutional.

By virtue of the First Amendment, the citizens also enjoy freedom of expression. The acknowledgment of such right has in 1735 in the case of Jon Peter Zenger, a printer (Linder). Zenger was prosecuted for seditious libel as a result of his publication in New York (Linder). However, the court found him not guilty. From that significant case, the right of speech was upheld. However, such right is not absolute because the words should not be uttered in order to violate other’s right or cause danger to other.

The recent case decided by the Supreme Court involving freedom of expression is that of Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (Find Law for Legal Professionals, 2008). In this case, the Forum for Academic and Institutional Rights, Inc . (FAIR) challenged the constitutionality of the Solomon Amendment (Find Law for Legal Professionals, 2008).

Meanwhile, FAIR is “an association of law schools and law faculties, whose members have policies opposing discrimination based on sexual orientation” (Find Law for Legal Professionals, 2008). On the other hand, the Solomon Amendment provides that schools denying military recruitment access will loss their federal funds (Find Law for Legal Professionals, 2008). The Solomon Amendment was challenged by the FAIR because it violates the schools’ right to expression and association (Find Law for Legal Professionals, 2008). They further contended that they would be compelled to choose between exercising their freedom but lose their federal funds and disseminate or accommodate military recruiter’s message (Find Law for Legal Professionals, 2008). The District Court decided in the negative but the Court of Appeals reversed it.

In finally resolving the case, the Supreme Court held that the Solomon Amendment did not violate right of expression and association (Find Law for Legal Professionals, 2008). Generally, the Solomon Amendment regulates conduct and not speech (Find Law for Legal Professionals, 2008). The act of giving e-mails and accommodating the military recruit’s in school is a conduct and not an expression. The Solomon Amendment does not even require or limit the schools on what to say. They are free to say anything in opposition to the message of the military recruiter’s. The accommodation of the recruiters does not even affect the freedom of expression of the schools because only the recruiter’s do the speaking during interview and recruiting. In effect, the Solomon Amendment does not necessarily violate the rights of the people to expression.

Completing the basic rights granted by the First Amendment is the right of the press. By reason of the function of the press and the media play in the society, it has been considered as the fourth branch of the government. Under the Constitution, the government cannot curtail or censure the activities of the press. Not unless it has established evidences to restraint such exercise. In questioning the acts of the press, the government is powered by the doctrine of prior restraint (Find Law for Legal Professionals, 2008). In 1931, the Supreme Court said, “liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraint or censorship” (Franklin, 1999, p. 81). In the modern context the doctrine of prior restraint has been interpreted by court by stating, “any system of prior restraints of expression comes to this Court bearing heavy presumption against constitutional validity” (Franklin,  p. 81). Hence, the government carries the burden of justifying a need for imposing censorship or restraint.

The landmark case of New York Times Co. v. United States (403 U.S. 713). In this particular case, the New York Times published the first part of classified material entitled, “History of U.S. Decision- making Process on Viet Nam Policy” (403 U.S. 713). The material was purloined by a former employee of Department of Defense, Daniel Ellsberg, and handled the confidential papers to the petitioner (Noone and Alexander, 1997). Washington Post also published the material. That day of publication, the paper circulated and staff of Nixon came to know about it. The government then filed an injunction to refrain further publication of the materials on the ground of national interest (403 U.S. 713). The government insisted that the continued publication of the materials poses grave ad irreparable danger that should be prevented at the earliest time. More importantly, Pres. Nixon raised executive privilege in prohibiting the petitioners from publishing the material because it is his inherent power, as president, to preserve peace and order and to classify materials as confidential. In the valid exercise of duty, the president sought for injunction.

The petitioner, on the other hand, argued that the materials are public and should be made accessible to the people. In addition, the materials are of public interest and as representative of the people, the petitioner should not be censured from publishing the other parts of the documents. The core of the case is focused on the conflicting provisions namely, Art. II and First Amendment, of the Constitution.

Upon deliberation, the Supreme Court arrived in a 6-3 decision in favor of the petitioner. In arriving in such decision, the Court visited the history of the creation of the First Amendment. According to the Framers of the Constitution, “the press was protected so that it could bare the secrets of government and inform the people” (403 U.S. 713). Moreover, the Supreme Court held that the government had not met the “heavy burden of showing justification for the enforcement of prior restraint” (403 U.S. 713). Eventually, the petitioner freely published the contents of the Pentagon Paper.

The importance of the rights conferred by the First Amendment can be measured from the cases presented. The provision of the First Amendment can also be concluded to be powerful because of the things it can change. Through the First Amendment, the citizens are granted with the essential rights of religion, expression, and of the press. However, such freedom is not absolute. Responsibility is attached to these rights.

In the freedom of religion, there are several issues that were raised. Even today, the provision is still being challenged because of several misinterpretations. With regard to the case cited, the court needed to settle the issue because of the public interest raised by the taxpayer. There are two opposing rights that the court should address and intelligently draw the line as to what right should prevail. The court interpreted that the program is constitutional because the government’s fund ends on the hands of the citizen. The citizen, in turn, appropriates it according to his own private decision. There are several grants that will be provided and religious affiliated sectors would indirectly benefit. As a result, several would also challenge it. But, through Court’s decision in Zelman, et. al. v. Simmons-Harris, et. al. (536 U.S. 639), the line has been drawn up to determine whether the government is supporting a religion.

As regard the case of right to expression, the Court invalidated the claim of FAIR on the basis that Solomon Amendment did not actually infringe their right. The rationale behind this is the fact that Congress can order the citizen to do particular act that is legal and within the context of the Constitution. Compelling one to do such act may be necessary but right cannot still raised to have been violated when the person still has room to exercise his right.

The controversial of all is the case on right of the press. The court favored the press because the government failed to prove the justifying reason why the publication should be restrained. In this case, the public interest prevailed over executive privilege. Notably, right after the court’s decision in such case, the government pursued in making illegal acts.

Today, the decisions of the court in these cases are of paramount importance. It also affects the people because it continues to influence public policy and is enough to warn government from violating civil rights. It also guides the people in acting within the bounds of that right.  Significantly, in the present situation of the nation, the government could enact laws that could curtail people’s rights.

The right conferred upon individual is vulnerable from government abuse because of issues concerning national interest. Right after the 9/11 attack, the government has been paranoid in securing the nation from further attack. As such, it has adopted measures to trace the terrorists and to protect the citizens and the nation from another horrifying attack. As a result, the government enacted the U.S. Patriot Act and established the Homeland Security. These are purposely to secure the nation from terrorist and further eliminate shadows of terrorism. However, as a consequence, the civil liberties are in peril. The rights of the people are being compromised in the name of national security. At present, the issue still continues to be an issue but then through decisions in the past, the fulcrum of the balance can be concluded to be in the side of civil liberties. This is evident also in the case of New York Times v. United States (403 U.S. 713) where the right of press was upheld against national security. Furthermore, the fulcrum can be said to be at the side of civil liberties because the burden of rebutting is always in the government.

In a free country, nothing is more important than the liberty of speaking, writing, and exercising faith. These are also the rights that would conclude that a nation is really a democratic one. Absent of such freedom would make Independence futile. By virtue of the First Amendment, the real essence of democracy and the true meaning of freedom are now enjoyed by the people. Having been inculcated in the Constitution, the government shall not further acts that will challenge it because civil liberties would always prosper against any curtailment.


Doug Linder. University of Missouri- Kansas City School of Law. (2008). Exploring Introduction to Establishment Clause. Retrieved October 22, 2008, from http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/estabinto.htm

Find Law for Legal Professionals. (2008). Rumsfeld, et. al. v. Forum for Academic and Institutional Rights, Inc. Retrieved October 22, 2008, from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1152

Franklin, C. (1999). Constitutional Law for the Criminal Justice Professional. Washington, D.C.: CRC Press.

Godwin, K. R., & Kemerer, F. R. (2008). School Choice Tradeoffs: Liberty, Equity, and Diversity. Austin: University of Texas Press.

Jurinski, J. (2003). Religion on Trial: A Handbook with Cases, Laws, and Documents. California: ABC-CLIO.

Michael Noone and Yonah Alexander, Cases and Materials on Terrorism: Three Nation’s Response (1997).

New York Times Co. v. United States (403 U.S. 713).

Noone, M., and Alexander, Y. (1997). Cases and Materials on Terrorism: Three Nation’s Response. Boston: Kluwer Law International.

US Constitution Online. (2008). First Amendment. Retrieved October 22, 2008, from http://www.usconstitution.net/const.html#Am1

Zelman, Superintendent of Public Instruction of Ohio, et. al. v. Simmons-Harris, et. al., 536 U.S. 639 (2002).

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