- [Kim] Hi, this is Kim from Khan Academy.
And today, I'm learning more about the First Amendment
to the U.S. Constitution.
The First Amendment is one of the most important amendments
to the Constitution, if not the most important.
It 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."
To learn more about the First Amendment,
I talked to two experts.
Erwin Chemerinsky is the Jesse H. Choper
Distinguished Professor of Law
and Dean of Berkeley Law.
Michael McConnell is the Director
of the Constitutional Law Center at Stanford Law School
and a Senior Fellow at the Hoover Institution.
Professor Chemerinsky, there's a lot going on
in the First Amendment.
Can you tell us a little bit more about why the framers
chose to protect these rights in particular?
- [Erwin] The historical background of the First Amendment
of the Constitution shows why the framers
wanted to be sure that all of the liberties
in the First Amendment were safeguarded.
Let's focus on freedom of speech and freedom of the press.
In England, there was after the printing press developed
licensing so that anyone who wanted to be able
to publish anything needed a license from the government.
Such licensing was seen to be inconsistent
with freedom of speech; freedom of the press;
for that matter: freedom of thought, freedom of inquiry.
- [Kim] Interesting.
Okay, so there are a lot of essential freedoms
that are packed into this First Amendment,
so much that it's almost amazing that we're gonna attempt
to talk about them all in one video.
But if we dial into freedom of speech,
Professor McConnell, what is freedom of speech?
Does that encompass some things and not others?
- [Michael] Freedom of speech was actually less important
to the framers than the freedom with which it was coupled
which is the freedom of the press.
And the reason for this is that speech
that can reach large audiences is much more important
to the individual, but also dangerous to the state
than mere speech.
When you speak, only those people within hearing range
can hear you.
But when you are able to use Gutenberg's
fantastic new technology to publish your sentiments
and distribute them widely,
maybe even over the entire country or across the Atlantic
and reaching hundreds of thousands of people,
now that is powerful.
And no wonder.
So you think about how the American Revolution was won.
This required spreading the word.
It required gaining converts and telling people
what their grievances were.
To a very great extent, this was done
through the mechanism of the printing press.
- [Erwin] When you ask the question of
what's freedom of speech, there's implicit within it
the issue of: what do we mean by speech.
Ultimately, the answer to your question is
the First Amendment protecting speech broadly safeguards
a right to express one's ideas.
But it's not absolute.
The government can restrict expression
if there's a compelling interest.
- [Kim] Interesting, can you say more about that?
- [Erwin] The Supreme Court always has been clear
that freedom of speech is not absolute.
The court has said that there are certain categories
of speech that are unprotected by the First Amendment.
Incitement of illegal activity is a category
of unprotected speech.
The court has said this requires showing that
the speech was directed at causing
imminent illegal activity,
and there was substantial likelihood
of imminent illegal activity.
Another example: obscenity is unprotected
by the First Amendment.
The court struggled for years trying to define
what is obscenity.
Maybe the low point in that is
when Justice Potter Stewart said,
"I can't define it, but I know it when I see it."
There are also these categories of speech
where the government can prohibit,
even punish the expression.
- [Michael] That's where most of the limitations
on the freedom of speech and of the press come from
is in order to make sure that we don't
hurt other people's rights through the use of our own.
So an example of that.
The government can prohibit speech
which incites violence against someone.
So if you're making a speech and calling upon the crowd
to attack somebody's house or their person,
that can be punished and prevented
as an incitement to violence.
And you can see how that follows from the logical idea
of freedom of speech being a natural right
and therefore limited by the rights of other people.
- [Kim] So let's turn our attention
toward the freedom of religion part of the First Amendment.
So the first thing that the amendment says
is about establishment.
So what does this establishment clause prevent?
- [Erwin] The language of the First Amendment is important.
It says that "Congress may make no law
"respecting the establishment of religion."
Since 1947, the Supreme Court has said that
that also applies to state and local governments.
And the Supreme Court has said this means
that the government cannot act with the purpose
of advancing religion.
- [Michael] To the founders,
this was a very clear legal concept.
Namely, it was the established Church of England.
In the statute books, in the law,
the Church of England was referred to as
and I quote "the Church by law established."
And what did it mean to be established?
First of all, it meant that the doctrines of the church,
the 39 Articles of Faith of the Church of England
were voted upon by Parliament.
So the doctrines, the liturgy, the text
were all adopted by law.
The established church was the government's church.
And it could be used, and from time to time was used,
as an instrument of government
or as an instrument of politics.
And this is a way in which the government
is able to have a powerful influence on the way
in which values and opinions are inculcated.
It's one of the most important ideas
of the established church, especially in the 18th century,
was to teach that there's actually a religious obligation
to obey the law and to recognize the king
as a supreme leader in matters of both church and state.
And the framers' experience with this
was extremely powerful.
- [Erwin] That's because the framers were aware
of the religious persecution
that had gone on in other countries.
They were aware of the evils that occur
when the government becomes aligned
with a particular religion.
- [Michael] The principal reason why many of the colonists
had come to these shores to begin with
was to escape the oppressions of the established
Church of England back home and to come to a place
where they would be able to exercise
the freedom of religion for themselves.
And the main opponents of the established church
were not anti-Christian or anti-religious people.
They were the most religious people.
And their view was the government should
stay out of our church, that we will decide
what we believe for ourselves.
We will control our own church.
We will write our own liturgy.
We'll decide what version of the Bible
we're going to use.
We'll choose our own ministers.
Thank you very much, government, stay out of it.
Leave us free to practice our religion
without having this kind of an establishment.
- [Erwin] So for instance, a county in Kentucky
required that the 10 Commandments be posted
in all county buildings.
The Supreme Court said the 10 Commandments
are a religious scripture.
There's no secular purpose for having the 10 Commandments
posted in county buildings.
The court declared it unconstitutional.
The Supreme Court has said the government can't act
where the primary effect is to advance
or to inhibit religion.
So for example, there can't be prayer in public schools.
Even a voluntary prayer in public schools in impermissible.
Because the court has said that the primary effect
of having prayer in public schools is to advance religion.
The court has explained that children will inevitably
feel pressured to participate.
And this coercion violates the Constitution.
- [Kim] So the First Amendment then prevents
that kind of intermingling
of the government and the church.
This is I guess the key idea of separation
between church and state.
But it also says that the "Congress shall make no law
"prohibiting the free exercise" of religion.
So what does that mean?
- [Michael] Free exercise of religion was the right
to practice your own religion.
It didn't keep the government from setting up a church,
but it did keep the government
from requiring you to attend that church,
maybe even to contribute to the church,
but also kept the government from preventing you
from worshiping elsewhere.
So the establishment clause by and large
prevents the government from forcing people
to participate in religion.
And the free exercise clause by and large
prohibits the government from preventing people
from practicing their religion.
Those two things work together
to enable everyone to worship God
in accordance with their own conscience.
- [Kim] Interesting.
So we mentioned a little bit about freedom of the press.
But there are two other aspects of the First Amendment:
"the right of the people peaceably to assemble,
"and to petition the government
"for a redress of grievances."
So what is included with the right to peaceably assemble?
Are there any situations where that might be restricted?
- [Erwin] The Supreme Court has said
that under freedom of speech, there's a right
to use government property for speech purposes.
This is also something which entails
the freedom of assembly.
And the Supreme Court has said that
there's certain government properties that the government
is required to make available for speech:
sidewalks and parks.
There's other places where the government
has more latitude to regulating speech:
school facilities evenings and weekends.
There's places where the government
can close entirely to speech:
military bases, areas outside prisons and jails.
All of these cases have been litigated
under freedom of assembly.
Some of the earlier cases explicitly mentioned
freedom of assembly.
But subsequent cases combined freedom of assembly
into the protection of freedom of speech.
- [Kim] I guess that makes sense.
But what about something like a march, for example,
that might say block traffic?
That's perhaps a clear case when there is this tension
between freedom of speech and assembly
and say public safety if they're blocking say an ambulance.
How do you resolve that tension?
- [Michael] Sometime in roughly the 1970s,
the court began using a quite different way
of looking at the free speech question
in which they said that
laws which regulate or prohibit speech
on the basis of the content of the speech
are, generally speaking, unconstitutional
absent a very important governmental purpose.
But that laws that are content neutral
and regulate speech on the basis of its time,
place, or manner are permitted.
So the basic idea here is
the government has regulatory authority over speech,
but not over what you say,
but just over when you say it,
where you say it, how you say it.
- [Kim] All right, so the last thing in the First Amendment
is the phrase "petitioning the government
"for a redress of grievances."
Congress shall make no law abridging that freedom.
What does this mean?
How would one petition the government
for a redress of grievances?
- [Erwin] There are, of course, many ways that people
can petition government for a redress of grievances.
It's the ability to go and testify
before our legislative body.
It's the ability to communicate with one's legislators
or representatives about change.
It's basically the ability to go to the government
and ask it to change its policy.
There are relatively few cases just about the right
to petition government for redress of grievances.
Again, I think the reason for that is
it's been so subsumed into the protection
of freedom of speech, everything one would do
by way of petitioning government for redress of grievances
is through speech and expression.
And so, the larger protection of speech and expression
has meant that the court hasn't needed to focus
so much on this particular right.
- [Kim] Is there anything that you feel
people commonly misunderstand about the First Amendment,
what it encompasses and what it does not?
- [Erwin] One of the most important misunderstandings
about the First Amendment is people fail to realize
that it, like all rights in the Constitution,
apply only to the government.
Before I took my current job, I was a professor
at Duke University in Durham, North Carolina.
Duke is a private university.
If while I was there, I had criticized the president
of the university and he would have ordered me fired,
I could not have sued him or Duke University
for violating my free speech rights.
The First Amendment doesn't apply
if it's a private university.
But now I'm with the University of California,
a state university.
If I were to give a speech criticizing
the president of the university
or the chancellor of my campus
and I was to be fired for doing that, I could sue.
I would sue.
Since this is a public university,
the First Amendment applies.
- [Michael] So I think the really dangerous thing
in our times is that
many people believe that they have some kind of a right
not to hear opinions that they find offensive.
Certainly college campuses are filled
with controversies of this sort.
This is something that our Constitution
was designed to prevent.
Free speech can inflict offense.
Sometimes it can be hurtful and insulting.
But we as a nation have decided
that it is better to put up with that
so that we can all be free to express ourselves,
to criticize the government,
to urge the religious and scientific
and artistic ideas that we have.
And that it's more important for all of us
to be able to do that than it is
to be able to retreat to safe spaces,
and require other people to shut up.
- [Kim] So we've learned that the rights protected
in the First Amendment derive from the historical context
of restricted speech, press, and religion in Europe
that the framers wished to avoid in the United States.
Freedom of religion includes both the freedom
not to participate in religion and the freedom to practice
whichever religion you choose.
Freedom of speech extends to all forms
of freedom of expression, not just words.
But there are limits to what counts as free speech.
To learn more about the First Amendment,
visit the National Constitution Center's
Interactive Constitution and Khan Academy's resources
on U.S. government and politics.