Friends and neighbors,  

The United States Constitution spells out Americans’ fundamental rights in relation to their government. While this document may have been written nearly 235 years ago, it still stands as a unique, exceptional beacon of freedom and is used every day in our lives. This week, I will begin a series of weekly emails commenting on each of the 10 amendments that make up our Bill of Rights. 

Reading the newspaper, gathering peacefully to support or oppose legislation, and attending religious services are all fundamental activities, along with countless others, that are protected by the First Amendment of the U.S. Constitution. 

The First Amendment reads:

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.

There are six clauses: establishment, free exercise, freedom of speech, freedom of the press, peaceably assemble and redress of grievances. 

Religious Clauses:

The first clause of the First Amendment is known as the Establishment Clause. The second clause is known as the Free Exercise Clause. Our Founding Fathers, like Thomas Jefferson and James Madison, criticized attempts by some who wanted to require individuals to support certain sects of Christianity. Others feared different sects would be prohibited. The two clauses doubly emphasize to Congress that they could not establish a religion nor prohibit the free exercise of religion because it was so important to be explicit on this issue. Having the freedom to exercise your religious beliefs publicly is a protected right. 

School prayer, aid to parochial schools, and displays of the 10 Commandments or Nativity scenes on government property are all issues that have arisen under the Establishment Clause.

This clause has been interpreted by the Supreme Court, in the Lemon v. Kurtzman decision, to require that laws must (1) have a secular legislative purpose; (2) its principle or primary effect must be one that neither advances nor inhibits religion; and (3) the law must not foster an excessive government establishment with religion.

If this test sounds confusing, it’s because it is. Many Justices of the Supreme Court have written that this test in unworkable, but as of today, it remains the standard on which to judge laws that allegedly violate the Establishment Clause.

A corollary to the Establishment Clause is the Free Exercise Clause. This clause prohibits Congress from passing laws that prevent the free exercise of religion.

Congress responded to the confusion by passing the Religious Freedom Restoration Act of 1993. The Act requires that any burdens placed on religion must be necessary for the furtherance of a compelling government interest and the burden must also be the least restrictive way in which to further the government interest. It also requires that like activities cannot be prohibited just because one’s content is religious – specifically using as an example a theatre and church. 

I believe that these two clauses were rightly put at the beginning of the First Amendment. Our Founders recognized that freely practicing one’s religious faith requires that government not coerce its citizens to endorse a particular religion.

Freedom of Speech:

As we saw with the religious clauses, Congress and the states can make laws that restrict those essential rights. But they cannot do it absent a constitutional justification. 

The Speech Clause has been interpreted by the Supreme Court to generally allow speech unless it falls into one of the following categories: advocacy of illegal activity, defamation, obscenity, true threats, or child pornography. That leaves a great deal of room for differences of opinion. If we can only speak what “others” approve, we do not have freedom of speech. 

Commercial, school, and political speech also fall under this clause. The Supreme Court reaffirmed protections for political speech and spending under the First Amendment in its Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission decisions. In general, the court respects that speech and using our money to facilitate our speech is protected speech. 

Freedom of the Press:

Another important right in the First Amendment is contained in the Press Clause. This right is also considered one of the fundamental rights by the Supreme Court. While like the Speech Clause and often invoked in conjunction with it, the Press Clause prohibits Congress and the states from pre- or post-publication censorship. Certain content-based regulations have been upheld by the Court for TV and radio because the government licenses the limited number of frequencies.

Freedom to Petition and Peaceably Assemble: 

Tracing its roots back to the Magna Carta, the right to petition one’s government for a redress of grievances is a right that I see daily. When constituents email, call, or write letters asking for me to support or oppose an issue, they are exercising the fundamental right of petitioning their government. While early cases described the right of assembly as merely a subordinate right to the primary right of petition, the distinction has largely been done away with.

It is also important to note that the Founders wrote that Congress may not infringe the right to peacefully assemble. While municipalities can restrict protests or assemblies using content-neutral time, place, and manner restrictions, the right to assemble as a group is one that all of us enjoy. 

We need to keep our constitutional system where citizens are free to question, criticize, or support issues of their choice without repression or censorship. Oppressive countries do not allow such rights as we have in the U.S. Constitution. But it is important that each of us rightly use our freedoms and rights knowledgeably and responsibly. 

Next week, I will write about the Second Amendment and the Supreme Court cases that address the right to keep and bear arms.

Contact me

I enjoy hearing from you about our Constitution and the rights it affords us. You can call me at 651-296-5655 or send me an email at sen.mary.kiffmeyer@senate.mn. Please also take time to talk with others about our timeless Constitution. 

Sincerely,

Mary