, Research Paper
The Evolution 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
The inhabitants of the North American colonies did not have a legal
right to express opposition to the British government that ruled them.
Nonetheless, throughout the late 1700s, these early Americans did voice their
discontent with the crown. For example they strongly denounced the British
parliament’s enactment of a series of tax levies to pay off a large national
debt that England incurred in its Seven Years War with France. In newspaper
articles, pamphlets and through boycotts, the colonists raised what would become
their battle cry: “No taxation without representation!” And in 1773, the
people of the Massachusetts Bay Colony demonstrated their outrage at the tax on
tea in a dramatic act of civil disobedience, the Boston Tea Party.(Eldridge,15)
The stage was set for the birth of the First Amendment, which formally
recognized the natural and inalienable rights of Americans to think and speak
freely. The first Amendments early years were not entirely auspicious.
Although the early Americans enjoyed great freedom compared to citizens of other
nations, even the Constitution’s framer once in power, could resist the string
temptation to circumvent the First Amendment’s clear mandate. Before the 1930s,
we had no legally protected rights of free speech in anything like the form we
now know it. Critics of the government or government officials, called
seditious libel, was oftenly made a crime. Every state had a seditious libel
law when the Constitution was adopted. And within the decade of the adoption of
the First Amendment, the founding fathers in congress initiated and passed the
repressive Alien and Sedition act (1798). This act was used by the dominant
Federalists party to prosecute a number of prominent Republican newspaper
editors.(Kairys,3) When Thomas Jefferson was elected president in 1801 they also
prosecuted their critics. More than 2,000 people were prosecuted, and many
served substantial prison terms.(Kairys,4) Prior to the ’30s, the court upheld
seditious libel laws and suppression of speech or writing based on the weakest
proof that it could leas to disorder or unlawful conduct sometime in the future,
in however remote or indirect a fashion.
Today the First Amendment protects many forms of expression including;
“pure speech, expressed in demonstrations, rallies, picketing, leaflets, etc.
The First Amendment also protects “symbolic speech” that is nonverbal expression
whose main purpose is to communicate ideas.(McWhirter,18) In the 1969 case of
Tinker v. Des Moines Independent Community School District , the Supreme Court
recognized the right of the students to protest the Vietnam War by wearing black
armbands. In 1989 and again in 1990, the Court upheld the right of an
individual to burn the American flag in public as an expression of disagreement
with government policies.(Eldidge,19) Other examples of protected expression
include images in works of art, slogans or statements on T-shirts, “fashion
statements that incorporate symbols and/or written slogans or declarations,
music lyrics and theatrical performances.
Within the last two years I have seen most of these protected
expressions banned in some situations. Some of the more focused issues were
fashion and display of art. The right to freedom is being severely tested today,
just as it has been throughout the 200 year history of the bill of Rights.
Governments by nature are always seeking to expand their powers beyond
proscribed boundaries, the government of the United States being no exception.
And since the right to free expression is not absolute, it must be constantly
protected against official depredations.
Today, artistic expression is under attack, as some groups of citizens
seek to impose their morality on the rest of society. Book censorship in the
public schools, mandatory record labeling, as well as obscenity prosecutions of
rappers, record distributors and museum directors, are all displays of
suppression effort. Artists, performers and authors now occupy the same weak
position that political radicals did in the late 1950s. TV networks and local
stations as well as large newspapers owned by fewer and fewer large corporations
with less and less concern for journalism or public discourse claim absolute
protection not only from government censorship but also from any claims to
access by the people. Although these media corporations monopolize the market
place of ideas, the courts tend to protect them against demands for popular
access, as if the major media were merely individuals handing out leaflets on a
major street corner.
In the past two hundred years of struggle to preserve freedom of
expression have taught us anything, it is that the first target of government
suppression is never the last. Whenever government gains the power to decide
who can speak and what they can say, the first Amendment rights of all of us are
in danger of being violated. But when all people are allowed to express their
views and ideas, the principles of democracy and liberty are enhanced. American
democracy should mean more than the right to picket when you are really upset or
pissed at the system and to vote every four years in elections devoid of content
or context. Change will require, as it has in the past, recognition that free
speech and democracy are political, not narrowly legal, issues. And it will
also require an enlargement of our understanding of such rights to include
public access to the various mass media.
Eldridge, Larry D. A Distant Heritage: The Growth of Free Speech in Early
America. New York: New York University Press, 1994.
Kairys, David. The Politics of Law In These Times. New York. Patheon Press, 1991.
McWhirter, Darien A. Freedom of Speech, Press, and Assembly, Phoenix AZ: Oryx
The World Book Encyclopedia.1995.