The Court and Basic Rights
By Jean M. West, Educator and Consultant in Port Orange, FL.
Every year the First Amendment Center conducts a survey about the First Amendment. Every year the survey results show that between a quarter and half of Americans believe "the First Amendment goes too far in the rights it guarantees." But, is it the First Amendment that Americans object to, or the Supreme Court's interpretation of it? The great freedoms enshrined in the First Amendment--freedom of religion, freedom of speech, freedom of the press, freedom to assemble and freedom to petition--are basic to life in the United States. Whenever the Supreme Court makes a decision that touches these fundamental freedoms, it touches all of us, often very deeply. Only nine Americans can sit on the bench of the Supreme Court handing down decisions, but most of the other 281,422,000 Americans (U.S. Census, April 1, 2000) look over the justices' shoulders offering their own concurring or dissenting opinions. We are a nation of "Monday-morning quarterbacks" who use the First Amendment to express our opinions of Supreme Court decisions--via letters to the editor, picket lines, talk-radio, marches, and e-mail chains. Our actions suggest we believe rather strongly in the First Amendment.
Every national curriculum for civics introduces the idea of personal rights to elementary school children, in some cases as early as pre-K. Standards may identify key curriculum items, but they do not make a topic teachable. Nothing is more teachable than a topic which touches us personally, and nothing touches us more personally than our basic rights. More often than not, schools and young people are in the middle of the litigation, from the Pledge of Allegiance to moments of silence, from journalistic freedom for student newspapers to the Boy Scouts of America. Young people have opinions, care strongly, and want to speak out--using their First Amendment rights--just as the adults around them do. To try to streamline and organize this vast topic, it's useful to divide the First Amendment into four major categories:
I. Religion Clauses
- Free Exercise
- Religious Establishment
II. Free Expression: Speech and Press Clauses
III. Peaceful Assembly Clause and Association
- Assembly
- Association
IV. Petition Clause
General Background to the Supreme Court and Basic Rights:
It is important to understand that the First Amendment was incorporated into the Constitution in 1791 along with nine other amendments known as the Bill of Rights. The First Amendment is treated in this essay as the most important of the ten amendments that make up the basic freedoms protected by the U. S. Constitution, but the other amendments are crucial to safeguarding American freedoms and civil liberties. It is this Bill of Rights that is the foundation of the Court's rulings over the years in the matter of civil liberties, and before we examine the First Amendment in detail, a brief history of the Bill of Rights is in order.
The Bill of Rights was incorporated into the Constitution shortly after its ratification in response to opponents of the Constitution. These critics of the Constitution feared the threat to individual liberties posed by a powerful central government and offered to support the Constitution's ratification only if a bill of rights would be added to the ratified document. Most of these "rights" were based on declarations of rights in state constitutions. James Madison, a key proponent of the Constitution, introduced and championed the amendments through the ratification process.
The first of the ten amendments protected basic civil liberties pertaining to religion, speech, press, assembly, and petition. This was followed by the Second and Third Amendments, which protected the rights of citizens to bear arms and prevented the quartering of soldiers in private homes. The next five amendments spelled out procedural rights, such as the right of "due process." They included safeguards against "unreasonable searches and seizures" (Fourth), procedures preventing compulsory self-incrimination when arrested (Fifth), provisions for the right to counsel and notification of causes of arrest or detention (Sixth) as well as the right to a trial by jury in civil cases (Seventh), and protection from harsh punishments and excessive fines (Eighth). The Ninth and Tenth Amendments refer to the structural divisions of power between the central and state governments. The Ninth Amendment specifically states that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Tenth Amendment limits the powers of the central government by making clear that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Of all the amendments, only the Third Amendment has never been the basis for litigation in the federal courts. Nor did other Bill of Rights cases in the first half of the nineteenth century make it to the Supreme Court as a result of legislation by Congress that infringed on civil liberties. Most of the court action dealing with civil liberties occurred in the state courts for three reasons: firstly, the Bill of Rights was interpreted by the Supreme Court to apply only to federal actions not state actions (Barron v. Baltimore 1833); secondly, nearly every state constitution included limits to state power similar to those found in the federal Bill of Rights, meaning that state courts were the principal arenas protecting civil liberties of U. S. citizens; thirdly, a relatively weak Congress seldom enacted laws that infringed on civil liberties.
This all began to change, however, with the passage of the Fourteenth Amendment in 1868, during the era of Reconstruction. This amendment specifically barred states from depriving "any person of life, liberty, or property, without due process of law," meaning that states could not violate these provisions of the First Amendment. An activist Supreme Court thereafter, but especially in the period 1930 through the 1960s, used the Fourteenth Amendment to include within the federal domain actions of state governments that violated the specific protections of civil liberties found in the Bill of Rights. Additionally, the Supreme Court has ruled that state courts cannot interpret the federal Bill of Rights differently from how the Supreme Court interprets these provisions, using the Supremacy Clause of Article VI as the basis for its holding. The Court has allowed states to expand rights in state laws but not to reduce them from what is demanded by the federal constitution (Michigan v. Long, 1983).
I. Freedom of Religion
A. Background of the Religion Clauses
Many settlers of the original thirteen colonies, as well as later immigrants to the United States, were religious dissidents who were persecuted because of their religion. A significant problem was state-established churches. In his 1689 Letter Concerning Religious Toleration, John Locke condemned religious establishment (official state religion) and advocated free exercise (the ability to worship freely) writing, "Concerning outward worship, I say, in the first place, that the magistrate has no power to enforce by law, either in his own Church, or much less in another, the use of any rites or ceremonies whatsoever in the worship of God."
Religious toleration (not persecuting someone for their religious belief) is not necessarily the same thing as religious freedom (the ability to worship freely.) Following the American Revolution, most states tolerated religious dissenters (such as Baptists and Quakers), but only Rhode Island and Virginia guaranteed religious freedom. During the Articles of Confederation, there were two significant expansions of religious freedom. The first was Virginia's Act for Establishing Religious Freedom (1786) written by Thomas Jefferson which declared, "Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities." In the following year, 1787, the Confederation Congress adopted the Northwest Ordinance, the first articulation of religious freedom on the national level. Its first article guaranteed, "No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory."
The Constitutional Convention only addressed religion briefly, at the very end of the Constitution, in the last clause of Article VI saying, "no religious test shall ever be required as a Qualification to any Office or public Trust under the United States." Because of the anti-Federalist backlash against the lack of a bill of rights, the First Congress considered religious freedom along with other personal liberties. James Madison's original draft of the religion amendment read, "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."
B. Free Exercise
The Free Exercise Clause was the first portion of the religion clauses to be argued before the Supreme Court. In 1878, the case of George Reynolds arrived at the Supreme Court. Reynolds was a member of the Church of Jesus Christ of Latter-Day Saints (LDS, or Mormon Church) married to both Mary Ann Tuddenham and Amelia Jane Schofield. Reynolds was found to be in violation of the federal statute for the territory of Utah which declared, "Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." In Reynolds v. United States (1878) the Supreme Court ruled against Reynolds' argument that polygamy was essential to free exercise of his religion. Chief Justice Morrison Waite wrote, "Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." In short, the Court said that the Constitution protected George Reynolds' right to believe in polygamy, but he still could not marry more than one woman at a time.
The Free Exercise Clause was considered as a restriction on Congress, rather than the states until fairly recently, beginning with Cantwell v. Connecticut (1940). In United States v. Ballard (1944), Justice William O. Douglas explained why the religious freedom is so important writing, "Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law." Over the past sixty-five years, the Supreme Court has made many decisions on whether state or local governments may punish individuals for following the practices of their religions, from shouting beliefs over a bullhorn, to conscientious objection to the military draft, to animal sacrifice.
During the years of the Warren and Burger Courts, government laws which created burdens on individuals exercising their religion were subjected to "strict scrutiny" tests. The Court ruled that South Carolina could not refuse unemployment benefits to a Seventh Day Adventist who had declined to accept a job which required that she work on her Sabbath, Saturday (Sherbert v. Verner, 1963). Similarly it struck down Wisconsin's compulsory school attendance as a burden on the Amish in Yoder v. Wisconsin (1972). The government had to prove "compelling state interest," a major public need (for example vaccinations required for public health) to force individuals to violate their religious belief. In the 1980s, the Supreme Court began to narrow what constituted a "significant burden" while it expanded what constituted "compelling state interest." For example, in Lyng v. Northwest Indian Cemetery Protection Association (1988), the Court ruled that the federal government did not have to take into account the impact on religious practices of a proposed road in a national forest which ran through ground considered sacred by Native Americans.
There was a major shift by the Court in 1990 in the case of the Employment Division of Oregon v. Smith when the Supreme Court decided it would no longer apply the "strict scrutiny" test to cases where individuals claimed exemption from laws on the basis of religious belief. Congress reacted to the decision in Smith and passed the Religious Freedom Restoration Act of 1993 (RFRA) which required local, state, and federal laws which interfered with religious exercise meet the pre-Smith standard of support by a "compelling state interest." However, in City of Boerne v. Flores (1997) the Supreme Court struck down the RFRA saying that the Congress was attempting to interpret law which is the prerogative of the judicial branch, not the legislative branch. There is no reason to believe that all the issues regarding free exercise are now "settled law."
C. Religious Establishment
The first major religious establishment case came to the Supreme Court fairly recently, in 1947, and focused on state aid to religion. Everson v. Board of Education involved a New Jersey transportation subsidy (a cash refund) to parents who sent their children to private religious schools. By a narrow 5-4 vote, the Supreme Court upheld the subsidy. Justice Hugo Black, writing for the majority, broadly interpreted the Religious Establishment Clause saying, "The ‘establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'"
A flurry of school cases followed in which the Court quite consistently struck down state aid to religious schools along with religion in public schools. In an effort to set a standard, the Supreme Court combined cases from Rhode Island and Pennsylvania over state financial support of non-public schools in Lemon v. Kurtzmen (1971). In writing for the majority and striking down the states' laws, Chief Justice Warren Burger created the three-part "Lemon test" for laws involving religious establishment: 1) a statute must have secular legislative purpose, 2) it may neither advance nor inhibit religion, and 3) it may not entangle government and religion excessively.
Some of the most controversial cases brought before the Supreme Court involve religious displays on government property. The Supreme Court has narrowly concluded that, while not all religious displays violate the Religious Establishment Clause, the physical setting and context are essential to determining if church-state separation has been violated. A Rhode Island crèche display presented in the context of a holiday season with no effort to teach religion was upheld (Lynch v. Donnelly, 1984), while another in Pennsylvania, was not (Allegheny County v. ACLU, 1989). In 2005, the Court upheld a general-historical Texas display of the Ten Commandments in Van Orden v. Perry while striking down framed courthouse copies of the Ten Commandments in McCreary County, Kentucky v. ACLU.
II. Freedom of Expression: Speech and Press Clauses
Although it contains few words, since the beginning of the 20th century, the free speech and press clauses of the First Amendment have been closely studied by the Supreme Court. While many people today think that "freedom of the press" deals only with the rights of journalists, the founders and the Supreme Court never viewed it in this limited manner. The clauses are read together and are understood to protect all citizens' freedom to express and share their ideas in written format, as well as aloud. This wider view of the clause has expanded freedom of speech into the even broader freedom of expression, taking into account non-verbal communication (including armbands and flag-burning) as well as changing communications technologies.
The First Amendment's protection of speech went into force in December 1791 yet only six and half years later, Congress curtailed political speech. Between June and July of 1798, in response to anticipated outbreak of war with France (and directed against French agents such as Citizen Genêt as well as the French-sympathizing Democratic-Republican party organizing around Thomas Jefferson), Congress passed four laws known as the Alien and Sedition Acts. Twenty-five arrests followed, including that of Benjamin Franklin Bache (Benjamin Franklin's grandson, editor of the Democratic-Republican newspaper Aurora), and ten men were convicted. Opponents eventually elected Thomas Jefferson to the presidency in 1800 along with a Democratic-Republican majority to the Congress. By 1802, all four acts were either repealed or allowed to expire. Jefferson also pardoned all who had been convicted while Congress reimbursed them the fines they had been forced to pay. Surprisingly, United States Supreme Court never considered the constitutionality of the Sedition Act.
In cases of national emergency the federal government has routinely responded by curtailing dissident political speech. During the Civil War the executive branch took the lead. Lincoln suspended the writ of habeas corpus, allowing Secretary of State William Seward to arrest and hold vocal critics; additionally, the Postmaster General could exclude from the mails newspapers deemed by a grand jury to be critical of the war.
During World War I, the legislative branch took the lead. Congress passed the Espionage Act (1917) and amended it with the Sedition Act (1918). Nearly 1,000 individuals were convicted under the provisions of these acts, and publications ranging from pacifist books by the Jehovah's Witnesses to the Los Angeles Daily Times were scrutinized. The Supreme Court sustained the constitutionality of the laws in six cases, including Schenck v. United States (1919). Justice Oliver Wendell Holmes, Jr. wrote the opinion for Schenck which included the famous passage, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Holmes then offered a test to decide whether free speech is permitted, or not: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
The success of Communists in overthrowing the czar of Russia in 1917, the May Day mail bombing campaign in 1919, and several labor strikes scared many Americans. Both the federal government and state governments responded to the Red Scare by clamping down on political dissidents. New York resident Benjamin Gitlow was a member of the Left Wing Section of the Socialist Party. He wrote The Left Wing Manifesto and helped to distribute 16,000 copies of The Revolutionary Age newspaper, both of which encouraged the overthrow of the government by force. He was arrested, tried and convicted under New York's 1902 criminal anarchy law which made it a felony to advocate the overthrow of the government either "by word of mouth or writing." The majority of the Supreme Court found New York's law and Gitlow's conviction constitutional. Although Gitlow's actions did not meet the "clear and present danger" standard of Schenck, Gitlow's words constituted a "dangerous tendency" which the majority felt New York could legally curtail. Gitlow lost the case, but one portion of Justice Edward Sanford's opinion significantly expanded protections of free speech: that the federal Free Speech Clause was applicable to the states. Sanford wrote, "For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."
From the time the Court incorporated the free speech clause through the Fourteenth Amendment in Gitlow v. New York (1925), it has considered numerous cases involving free speech and press. The Court has divided speech in two categories: protected speech and non-protected speech. The categories themselves are not absolute, but protected categories require "strict scrutiny," that the government's interest must be extraordinarily compelling when balanced against the individual's free speech rights for the Court to find abridgement constitutional. Protected speech categories include political speech (literal, written and symbolic), religious speech and judicial speech. Non-protected speech includes much commercial speech, tax-funded medical speech, defamatory speech about private figures, and obscene speech. The right to hear what a speaker has to say has been considered in only one major case.
To be certain, times of crisis continue to test the commitment of the federal government to personal liberties. Although the Supreme Court more effectively protected fascist sympathizers against sedition charges in World War II, it failed to protect Japanese-Americans from internment. The McCarran Internal Security Act of 1950 restrained free speech as the nation fought Communism during the Cold War. Although protest could not be quelled directly during the Vietnam War, the government harassed some dissenters with tax audits by the Internal Revenue Service and surveillance by the F.B.I. Expanded federal powers following September 11, 2001 under the Patriot Act are the source of ongoing litigation.
III. Peaceful Assembly Clause and Association
A. The Peaceful Assembly Clause
The right to peaceful assembly has created some of the odder pairings in judicial history. Consider the United States v. Cruikshank (1875) and NAACP v. Alabama (1958). In Cruikshank, the first Supreme Court case to consider this right, Chief Justice Morrison Waite eloquently declared, "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." While upholding the Peaceful Assembly Clause in Cruikshank, the Court did not assert a constitutional freedom to associate; that occurred in a case nearly a century later, in the NAACP v. Alabama (1958).
The sad irony is that Cruikshank struck down the indictment of William Cruikshank and nearly a hundred members of the Ku Klux Klan who had organized to prevent African-Americans from voting. Congress had passed the Enforcement Acts and provided that if "two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony." Cruikshank and his co-defendants had been indicted under the Enforcement Act on charges of having deprived African-American citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." The Supreme Court found Cruikshank's indictment inadequate because it did not claim that the African-Americans were meeting to exercise their federal rights.
B. The Right to Association
In stark contrast, a unanimous Supreme Court decided in NAACP v. Alabama (1958) that an Alabama requirement that the National Association for the Advancement of Colored People reveal its membership lists was an unconstitutional intrusion in the right to peaceful assembly. Justice John Marshall Harlan recalled the Ku Klux Klan, whose activities were unchecked by Cruikshank, saying, "on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility."
The First Amendment does not specifically grant a right to association, but Enlightenment philosophers such as Jeremy Bentham viewed it as a natural right. In Bentham's A Fragment on Government (1776) he wrote that free governments are characterized by "the security with which every man, be he of the one class or the other, may make known his complaints and remonstrances to the whole community: on the liberty of public association; or the security with which malcontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them." Building on their reasoning in NAACP v. Alabama (1958), the Supreme Court has expanded protected association beyond political groups. It recognized a right to intimate association through the Fourth Amendment and expressive association through the First Amendment's protection of free speech and peaceful assembly.
As with free speech and press, freedom of assembly has gone through some difficult times in U.S. history. The Red Scare which followed the Russian Bolshevik Revolution led to state laws in the 1920s and 1930s to limit labor unions as well as the Socialist and Communist political parties. In DeJonge v. Oregon (1937), the Supreme Court declared invalid an Oregon law against "criminal syndicalism" which created, in effect, guilt by association. In the 1960s, following the abuses of the McCarthy era, the Supreme Court repeatedly struck down laws which criminalized association with the Communist Party including Arizona's loyalty oath in Elfbrandt v. Russell (1965), and a Congressional statute aimed at defense plant workers in United States v. Robel (1967).
In recent years, the Supreme Court has closely examined private associations to make certain their main purpose is not discrimination. In Roberts v. U.S. Jaycees (1984); Board of Directors of Rotary International v. Rotary Club of Duarte (1987); and New York State Club Association v. City of New York (1988), the Supreme Court ruled that the equal protection interests of women outweighed private clubs' association rights and required that they admit women. The Supreme Court has also decided that states cannot hold open primaries (in which voters who are not members of a political party may participate in candidate selection by a political party) in the case of California Democratic Party v. Jones (2000).
Recently, in Boy Scouts of America v. Dale (2000), the Supreme Court considered whether the Boys Scouts of America had the right to revoke the adult membership of James Dale, a former Eagle Scout and troop leader who was a homosexual and gay rights activist. The Supreme Court narrowly ruled in favor of the Boy Scouts, 5-4. Chief Justice William Rehnquist wrote for the majority saying, "We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. ‘While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'"
The test for when association rights end and discrimination begins remains unresolved and will continue to be refined by the Supreme Court. Just as the Court has labored to chart the constitutional course between free exercise and religious establishment, it is now charting the course between individuals' fundamental liberty rights to equal opportunity and personal expression and groups' rights to associate and express themselves through peaceful assembly.
IV. The Petition Clause
The clause of the First Amendment most often overlooked by the public is the one that guarantees the right to petition the government for redress of grievances. Yet, it would be a mistake to think that it was a mere afterthought. The right to petition goes back to the founding document of English liberties, the Magna Carta (1215). It was reaffirmed time and again, even as the fifth item in the English Bill of Rights of 1689, which stated, "That it is the right of the subjects to petition the King, and all committments and prosecutions for such petitioning are illegal." The founders understood that if citizens could be jailed for addressing their government, the freedoms of speech, press, and assembly would be pointless.
The Supreme Court has rarely looked at the Petition Clause apart from other First Amendment issues, but did so in McDonald v. Smith (1985). Robert McDonald wrote letters to President Ronald Reagan and other government officials asking them to block Smith's appointment as a United States Attorney because of misconduct. Smith believed he had been libeled and sued McDonald; McDonald claimed his letters were absolutely protected speech under the "right to petition." The Supreme Court unanimously disagreed that libel in a petition was protected speech. Chief Justice Warren Burger wrote: "To accept petitioner's claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions…. The right to petition is guaranteed; the right to commit libel with impunity is not."
The Petition Clause has been entwined in Supreme Court cases about the right to picket (Thornhill v. Alabama, 1940); the right to register Congressional lobbyists (United States v. Harriss, 1954); and the right to orderly and peaceful marches and sit-ins (Brown v. Louisiana, 1960, and Edwards v. South Carolina, 1963). Perhaps most interestingly, the Supreme Court struck down a Congressional act preventing people from demonstrating on the sidewalks in front of the Supreme Court Building, in United States v. Grace (1983). In the words of Justice Thurgood Marshall, "It would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights. I would apply to the premises of this Court the same principle that this Court has applied to other public places." The same First Amendment which governs the federal legislative and executive branches, the states, and individual citizens, governs the Supreme Court itself.
Conclusion
In 1929, the Supreme Court denied the appeal of a Hungarian pacifist who had been refused citizenship in United States v. Schwimmer. Justice Oliver Wendell Holmes, Jr. in his concurring opinion, observed "…if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate." In 2005, the Supreme Court unanimously affirmed the religious rights of prisoners, thanks to a lawsuit against the correctional facilities of Ohio filed by a witch, two polytheists, a racial separatist and a Satanist, Jon Cutter, whose name heads the case, Cutter v. Wilkinson. Brian Fahling, a senior trial attorney for a Christian legal advocacy group, welcomed the ruling saying, "It is a sign of the times, I suppose, that it took a witch and a Satanist to secure the right of inmates to worship."
It is a sign of the times that a witch can go to court with the expectation of a hearing rather than a hanging, but it would be a mistake to think that the Supreme Court looked around for an eclectic group of religious minorities just to make a point. While it is true that the Court selects the cases it will hear, it cannot cause those cases to happen. It is the American people, arguing over their rights and going to court to defend them who continue to create the cases the Supreme Court will ultimately decide. More often than not, the people who initiate these cases are those whose "thought we hate." In asserting that the First Amendment protects their rights, the Supreme Court tries to protect the rights of all citizens.
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Selected Bibliography
Print Sources
Azizah Y. al-Hibri, Jean Bethke Elshstain, and Charles C. Haynes. Religion in American Public Life: Living with Our Deepest Differences. (New York: W.W. Norton & Company, Inc., 2001).
Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. (New York: Oxford University Press, 1997).
Hentoff, Nat. Free Speech for Me--But Not for Thee. (New York: HarperCollins, 1992).
Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997).
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. (Massachusetts, London: Harvard University Press, 1988).
Noonan, John T. and Gaffney, Edward McGlynn. Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government. (New York: Foundation Press, 2001).
Rehnquist, William H. All The Laws But One: Civil Liberties in Wartime. (New York: Vintage Books, 2000).
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004).
Internet Sources
American Library Association: Intellectual Freedom, The First Amendment
http://www.ala.org/ala/oif/firstamendment/firstamendment.htm
The Bill of Rights, remarks delivered by Associate Justice Hugo Black at the New York University School of Law, February 17, 1960 and printed in the New York University Law Review, Vol. 35, April 1960.
http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm
Documentary History of the Bill of Rights
http://www.constitution.org/dhbr.htm
University of Missouri-Kansas City Law School, Exploring First Amendment Law
http://www.law.umkc.edu/faculty/projects/ftrials/firstamendment/firstamendmenthome.htm
The First Amendment Center
http://www.firstamendmentcenter.org/default.aspx
First Amendment Cyber-Tribune
http://fact.trib.com/