Talk:First Amendment to the United States Constitution/Archive 2

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Text move?

I am currently in the process of rewriting and expanding the article Freedom of speech in the United States in my sandbox. As it stands right now, the article is entirely inadequate, as it fails to discuss freedom of speech post-Alien and Sedition Act. I've just noticed, however, that a substantial portion of this article (this section) is essentially exactly what I was planning to add (at least in part) to the Freedom of speech in the United States article. While I think more can and should be discussed in regard to freedom of speech, my question now is whether the Freedom of speech in the United States article is necessary at all. If so, and I think it probably is, as the long "freedom of speech" section of this article disrupts the flow of the article substantially, would anyone be opposed to me (1) moving most of the text of that section to the Freedom of speech in the United States article and (2) summarizing the section in this article in a few paragraphs, leaving a link in place to the other article? - Jersyko·talk 04:42, 28 February 2006 (UTC)

"The Meaning of the First Amendment" section

I realize that this has been discussed previously, so forgive me for coming to the discussion late, but this section of the article reads like an originalist or constructionist polemic. The section attributes the scope the First Amendment's protection entirely to stare decisis, implying that the expansiveness (or lack thereof) of the First Amendment's protection is entirely a product of the judiciary's reading of the Amendment. It completely fails to discuss other possibilities in what amounts to an argument that the Supreme Court (read "Activist Judges") has "revised" and "rewritten" the First Amendment. I see that the section was added long after this article obtained featured status. I think it should be removed, but would like to hear what other editors think before taking any action. - Jersyko·talk 20:58, 29 March 2006 (UTC)

• Well, at the very least it needs to be substantially rewritten to reflect the fact that this is just one theory espoused as to the interpretive gloss on the Amendment. It doesn't mention at all the fact that the Fourteenth Amendment affects the scope of the First, or that the Court is struggling mightily to determine how the Founding Fathers would have applied the language of the Amendment to pornography, mass media, telemarketers, television, the internet, etc. bd2412 T 21:23, 29 March 2006 (UTC)
• Jersyko & BD2412 -- I absolutely agree. This "virtual first amendment" is not a useful abstraction, because blurs the distinction between the amendment's text and caselaw interpreting it. Also, we're not going to put a "virtual" text in front of every wikipedia article about a legal topic. It's a complicated, awkward way of saying something simple: the text of the amendment doesn't provide unambiguous answers to every question!

I have read the entire section, and it seems to be off topic. The section as it exists now is a discussion about the nature of constitutional law, using the first amendment as an example. That would be more relevant to a page regarding, say, debates of constitutional law. Since the "virtual first amendment" does appear to be relevant I am moving the section down to the page (it should not be the first supporting paragraph) and titling it "Current Legal Interpretations" BarkingDoc 00:13, 18 April 2006 (UTC)

Disagree completely. Section is thoroughly relevant, not off-topic, thoroughly on-topic, absent any bias whatsoever, simply explaining what is currently the case in constitutional interpretation to those who are not familiar with it. It is also extremely useful in understanding subsequent Supreme Court opinions which counteract the literal text of the amendment. User:68.209.177.178

• Could you respond to the concern expressed in my first comment above? As it stands right now, there seems to be consensus here, with your lone dissent, to either rewrite the section, remove it completely, or place it lower in the text. I suggest we stick with the most conservative option for the moment and place it lower with a different section title until we can discuss this further. - Jersyko·talk 19:22, 18 April 2006 (UTC)

Did respond to concern, and this was discussed thoroughly many months ago. A better option would be adding commentary in the section. If other possibilities should be discussed, discuss them in the body of the article, the purpose of Wikipedia is to educate, introduce people to information that they don't have, let's let the Chinese do the censorship and the Americans allow free speech! Don't see any need to move lower, logical where it is. User:68.209.177.178

• I read the debate above. Actually, it was not resolved at all, but rather discussion simply ceased. In fact, there were other editors who expressed the same concern BD2412, Barkingdoc, an anon, and I have expressed recently. Also, Wikipedia is not the U.S. government, Wikipedia is an encyclopedia, thus the First Amendment does not apply to Wikipedia. The Neutral point of view and what Wikipedia is not policies, however, do apply to information on Wikipedia. Finally, could you flesh out your response ("section is thoroughly relevant, not off-topic, thoroughly on-topic, absent any bias whatsoever") to the counterarguments posted, possibly referencing exactly how each of the concerns expressed are misguided? Thanks! - Jersyko·talk 19:46, 18 April 2006 (UTC)

I would like to suggest some further concrete objections to the "virtual text" section of the article.

I have some specific, nit-picky objections:

1. This section describes judicial interpretation of the constitution as "functionally revising" the text. Judicial decisions do not carry that kind of weight. Judges (almost) always acknowledge that judicial interpretation is secondary to the Constitutional text, which means incorrect decisions, far from being functional revisions of the text, get overruled.

2. It is misleading to use the quote from Denver v. FCC to suggest that the Court acknowledges its case law contradicts the constitutional text. The First Amendment doesn't say anything about not regulating speech; it says Congress can't abridge the "freedom of speech." Just as laws forbidding polygamy or human sacrifice are not "prohibiting the free exercise [of religion]," the words "freedom of speech" are not inconsistent with some speech regulation.

3. The statement that "the literal text of the First Amendment is no longer used by the Supreme Court in rendering its decisions..." is wrong. The Supreme Court explicitly relies on the literal text of the First Amendment in every First Amendment case I have ever read. (Of course, it relies on other things as well....)

I also have a general objection:

4. A "virtual text" is a bad way to describe precedents, because judicial precedents do not carry legal force in the same way enacted text does. For example, old precedents that have been repeatedly reaffirmed are much stronger than controversial recent precedents. But court decisions look the same in a "virtual text" regardless of whether they are old or new. Another example: the "virtual text" gives no indication of the factual background that gave rise to a particular legal rule. But that factual background can be an important factor in assessing whether the rule will apply to a given set of new facts. If nothing else, weak precedents can be constrained to their narrow facts, while stronger precedents are applied more generally. There are a lot of differences like these between the way court decisions work and the way constitutional texts work; the point is, conflating the two is not empirically accurate.

The best way to describe precedents is the traditional way: as precedents, not as unofficial parts of the text of the constitution. —The preceding unsigned comment was added by 66.108.186.239 (talk • contribs) .

Comments to the above follow:

1. This section describes judicial interpretation of the constitution as "functionally revising" the text. Judicial decisions do not carry that kind of weight. Judges (almost) always acknowledge that judicial interpretation is secondary to the Constitutional text, which means incorrect decisions, far from being functional revisions of the text, get overruled.

Actually, those who understand how stare decisis works, i.e., those in the legal system, understand how literal text can be, through interpretation, transformed into something almost completely different. There is much literature on this (some of which has been cited in the "Meaning of the first amendment" section), so this particular comment to the contrary must be seen as unsupported opinion without further evidence.

2. It is misleading to use the quote from Denver v. FCC to suggest that the Court acknowledges its case law contradicts the constitutional text. The First Amendment doesn't say anything about not regulating speech; it says Congress can't abridge the "freedom of speech." Just as laws forbidding polygamy or human sacrifice are not "prohibiting the free exercise [of religion]," the words "freedom of speech" are not inconsistent with some speech regulation.

It isn't misleading at all. To regulate speech is to abridge it. And yes, the words "freedom of speech" are completely inconsistent with speech regulation.

3. The statement that "the literal text of the First Amendment is no longer used by the Supreme Court in rendering its decisions..." is wrong. The Supreme Court explicitly relies on the literal text of the First Amendment in every First Amendment case I have ever read. (Of course, it relies on other things as well....)

I also have a general objection:

By "relying on other things as well", the Supreme Court creates a virtual text, because it does not solely rely on the literal text of the First Amendment.

4. A "virtual text" is a bad way to describe precedents, because judicial precedents do not carry legal force in the same way enacted text does. For example, old precedents that have been repeatedly reaffirmed are much stronger than controversial recent precedents. But court decisions look the same in a "virtual text" regardless of whether they are old or new. Another example: the "virtual text" gives no indication of the factual background that gave rise to a particular legal rule. But that factual background can be an important factor in assessing whether the rule will apply to a given set of new facts. If nothing else, weak precedents can be constrained to their narrow facts, while stronger precedents are applied more generally. There are a lot of differences like these between the way court decisions work and the way constitutional texts work; the point is, conflating the two is not empirically accurate.

The best way to describe precedents is the traditional way: as precedents, not as unofficial parts of the text of the constitution.

If one reads the book cited in the article, WOULD THE REAL FIRST AMENDMENT PLEASE STAND UP?, one would be able to see exactly how the Supreme Court opinions function this way, and why a Cornell University law professor can write an article called "Flowcharting the First Amendment", and the flow chart has nothing to do with the First Amendment as it is written in the Constitution.

Just the Facts

• Would you agree that even though you and others consider the Supreme Court to be revising the First Amendment via a "virtual text," there are a large number of scholars who disagree with such an assessment and would characterize the Court's actions differently? Also, have you read WP:NPOV and Wikipedia is not a soapbox? Thanks! - Jersyko·talk 13:02, 24 April 2006 (UTC)

I still adhere to the views I stated above (in February and July of 2005). The assertion in the current text that "the literal text of the First Amendment has been functionally revised through the doctrine of stare decisis" is clearly POV. This whole section subtracts from rather than adding to the reader's understanding. The concept of a "virtual First Amendment" is not a significant viewpoint that needs exposition in this article. To remove the entire section and replace it with a single unannotated "See also" link to the Virtual first amendment article would still give this concept a bit more attention than it deserves. JamesMLane t c 13:24, 24 April 2006 (UTC)

The article simply states reality as it exists, and is therefore, almost by definition, neutral. If you disagree with this, you are free to edit the article to remove what you see as "bias". Simply removing the article due to your opinion without putting in the necessary effort of clarification is intellectual laziness, and deprives the entire world of being exposed to, at the very least, an alternative point of view. User:68.209.177.178

But you're ignoring the existence of the virtual first amendment article. The world is by no means being "deprived" of an alternative point of view; I even added a link to virtual first amendment article in this article. Your admission that it is "an alternative point of view" further demonstrates the need to remove the passage from the article. Finally, there has been months of debate on this subject, which is noted below, and there is an apprehensible consensus. - Jersyko·talk 14:12, 25 April 2006 (UTC)

Actually, stated that "at the very least" this would be seen as an "alternative point of view". Such would occur for a person who saw a reality in terms of "points of view", and had never been exposed to this aspect of judicial reality. However, strictly speaking, it is not a "point of view" at all, but simply pointing at an aspect of reality which is critically important in understanding the First Amendment. For that reason, the topic should not be relegated to a link somewhere else, but belongs in the topic proper. User:68.209.177.178

Action on the "Meaning of the First Amendment" section

OK, after looking back at the discussions immediately above as well as further up, it seems that User:Cyferx, 66.108.186.239, User:Emsworth, User:JamesMLane, User:DESiegel, User:Barkingdoc, User:Kenj0418, User:BD2412, and myself all seem to agree that this section needs to either be (1) substantially rewritten or (2) excised from this article. On the other hand, User:Pythagoras, User:Just The Facts, and various anons (who may or may not be Pythagoras and/or Just the Facts) have argued for inclusion of the passage.
The debate over the inclusion of the passage has gone on for months. Since consensus appears to be against its inclusion as is, I am removing the passage and including a "See also" link to virtual first amendment, which is really where this information belongs. - Jersyko·talk 19:58, 24 April 2006 (UTC)

• I've requested temporary semi-protection for this article, as my edit per consensus keeps getting reverted. - Jersyko·talk 19:11, 25 April 2006 (UTC)

  I have protected this page due to a edit war ignoring consensus. Please notice that: 1) Protection is not endorsement of the current version; 2) This is a temporary measure, and the page will not stay protected forever. This action has been automatically logged and registered by me here. If you have any objection to the temporary protection of this article, however, please elaborate your point on this talk page. I would also like to encourage the parties involved in the issue that led to this protection to work out their differences on this page. Please remember to be civil, polite and thorough in your comments. Remember: the sooner the issue is resolved, the sooner the protection can be lifted. Thank you. Redux 21:19, 25 April 2006 (UTC)

  If registered users start revert warring this, I will consider upping to full-protection, so please, let's not come to this point. Thanks, Redux 21:19, 25 April 2006 (UTC)

This was discussed many months ago, the item was substantially rewritten to conform to various concerns, and after being rewritten was posted with no negative comments for several months, and tens of thousands of readers read the article with no negative comment. However, a new user, Jersyko, and a couple of other like-minded people, decided to deprive these tens of thousands of people of being exposed to some critical facts regarding the actual meaning of the First Amendment, which is critically important in understanding that amendment, and in understanding why there are dozens, if not hundreds, of federal laws and regulations on the books which have abridged the freedom of speech, in direct contradiction to the literal text of the First Amendment. It is important to understand why this is the case, and this section does its part to convey that understanding. This user, Jersyko, was asked to rewrite the supposedly problematic section to remove any concerns he had. Rather than doing this, he simply kept removing the text itself, a far easier task than the more difficult task of editing. When this failed, he asked to have the article "protected" (i.e deprive hundreds of possible authors of the ability to enhance and/or corrected text). So his modus operandi is quite clear: remove text from this fantastic resource which does not conform to his particular sensibilities, and also prevent other people from posting text on Wikipedia which does not conform to his particular sensibilities. Is this the Wikipedia way? I doubt it. User:68.209.177.178

• There is neither a statute of limitations nor the concept of laches in Wikipedia -- an article may be improved at any time, and edits that make an article worse do not gain value from having been left alone for a time. The text that was removed was lengthy and discursive, and because of its length gave undue weight to a small minority view. A number of established Wikipedians, including Jerseyko, noticed and cooperatively improved the article by removing the discursion to a separate article. This is the Wiki Way. I add my voice to the consensus. Robert A.West (Talk) 12:31, 26 April 2006 (UTC)

The central error of the censoring contingent is the erroneous contention that to explain the role of "stare decisis" in Supreme Court interpretation is a "small minority view", or even a "view" at all. It is not a "view."...it is a fact! And an important one . . . does it really need to be said that the test of truth is not majority vote, but an examination of facts. For good reason. In the particular case, we have only received the opinions of .0001 percent of the readers of the article, in all likelihood. But even if 51% of the readers wanted to exclude facts which are demonstrably true (and certainly on point) from an article, this does not mean they have the right to deprive the other 49%, as well as the untold thousands who, having been exposed to the material, would fall into either camp based on what they've read. The real answer is to re-edit the article if bias is in place. Incidentally, the length of the article was necessary from the standpoint of establishing the validity of the concept, yet one could argue that given the replies here, the length was not nearly enough. User:68.209.177.178

I still fail to see how readers are being "deprived" of anything when there is an article on the virtual first amendment already and a link to that article in this one. The text at issue is not merely a presentation of "fact," it is a presentation of opinion that is based on selective facts that happen to support an opinion (but could actually just as easily support others). I agree with Robert West in re undue weight, but would also point out that the following from Wikipedia's NPOV policy is relevant, "Even when a topic is presented in terms of facts rather than opinion, an article can still radiate an implied stance through either selection of which facts to present, or more subtly their organization." If consensus had been to merely edit the section to remove bias, I would have done so. However, given that editing the section to remove weasel words and obvious bias would still leave a core of a libertarian polemic, that was not the consensus. Finally, though you hav eattempted to cast my actions as those of a rogue editor and "new user" (which I'm not sure I understand fully), I point again to the demonstrable consensus that this text should not remain in the article as written. - Jersyko·talk 14:53, 26 April 2006 (UTC)

"Fanatic: someone who does what the Lord God would do if He only knew the facts of the case." What you get if you substitute our anon's silent majority for the Divinity, I'm not quite sure. In any case, this majority is welcome to edit and discuss the article; until they do, we must stay with WP policy: the test for inclusion is verifiability, not truth. It is not Wikipedia's business to restore forgotten truths; Wikinfo exists for that. Our business to catalog the illusions that presently possess mankind. Septentrionalis 22:39, 26 April 2006 (UTC)

It has been claimed that the censored section(removed with the cooperation of Wikipedia editors) is "biased". Let us examine this section closely to see if in fact it displays the lack of "neutral point of view" claimed.

The Meaning of the First Amendment

On its face, given the text of the First Amendment, it would appear that any law passed by Congress abridging the freedom of speech or of the press would be unconstitutional. However, this does not consider the role of the doctrine of stare decisis, in which judges consider previous decisions they (and other courts) have rendered to be binding precedent, decisions to be followed as if they were themselves laws. This is extremely significant. In his law review article "Return to Philadelphia" (1 Cooley Law Review 1, 35-6), Thomas Brennan referred to this phenomenon as creating an "empirical Constitution":

There are those who hold that the American Constitution is not a written law at all, but is rather the sum total of all those customs, traditions, institutions and practices which have grown up over the years, and which influence or control the workings of our national government. In this view, the Constitution is considered coextensive with the governing Establishment. It is the way things are. It is the distribution of power, as it actually exists and is effectively exercised in modern American society. This might be termed the empirical constitution. . . .

Any impartial observer would have to conclude that the previous two paragraphs are utterly impartial. Let us continue.

This phenomenon has been discussed in several books, most notably Edward Corwin's The Constitution And What It Means Today (published by Princeton, ISBN 0691027587). But it is not only academics who have recognized the phenomenon. Members of the Supreme Court have on occasion acknowledged that the Court has revised/amended the Constitution by construction. For example, in 1969, Judges Black and Douglas stated in their concurrence in Baldwin v. New York, 399 U.S. 66 (1969) that

Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that 'all crimes' did not mean 'all crimes,' but meant only 'all serious crimes.' Today three members of the Court would judicially amend that judicial amendment and substitute the phrase 'all crimes in which punishment for more than six months is authorized.' This definition of 'serious' would be enacted even though those members themselves recognize that imprisonment for less than six months may still have serious consequences. This decision is reached by weighing the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically concluding that the scale tips at six months' imprisonment. Such constitutional adjudication, whether framed in terms of 'fundamental fairness,' 'balancing,' or 'shocking the conscience,' amounts in every case to little more than judicial mutilation of our written Constitution.

This is also impartial. This is entirely consistent with the Wikipedia policy: "assert facts, including facts about opinions". As a direct quote, this is inherently non-biased. The claim that this is a "libertarian polemic" is obviously disproven by the fact that this quote comes from the two most "liberal" (i.e. anti-libertarian) justices of the Supreme Court, Black and Douglas, who also happened to be (for the most part) defenders of the Constitution as written.

While in the Baldwin case judges Black and Douglas were addressing the Fifth Amendment, the First Amendment has received the same treatment. Consequently, the literal text of the First Amendment has been functionally revised through the doctrine of stare decisis, as the Court has also acknowledged. For example, in Denver v. FCC (1996), [1], the Court stated that "this Court, in different contexts, has consistently held that the Government may directly regulate speech . . .", even though the text of the 1791 First Amendment states clearly that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .".

Another direct quote. Where is the bias here?

This phenomenon of functionally revising literal text has also been referred to as creating a "virtual First Amendment".

Another fact.

But if the literal text of the First Amendment is no longer used by the Supreme Court in rendering its decisions, what is? The text below is a brief representation of the virtual text used by the Supreme Court in its First Amendment jurisprudence over the years, from Thomas Ladanyi's book The 1987 Constitution .

Text of the Virtual First Amendment (heavily abridged)

No State legislature or the Congress of the United States shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press all media of information; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. This general prohibition shall be subject to the following elaborations, extensions, restrictions, limitations, interpretations and conditions: a. The absolute freedom of engaging in or refraining from speech and non-verbal communication, and receiving or refusing to receive information, without any coercion, shall be a rebuttable presumption in any administrative or judicial proceeding, concerning any attempts to abridge them. The onus of rebutting this presumption shall rest entirely on the party seeking such abridgment, by showing that the speech or non-verbal communication sought to be restrained, or the information to be withheld, do not, by virtue of some other conflicting and overriding considerations or necessities, fall within the categories of freedoms that this section is intended to protect; b. Any Congressional, State, or local legislation or regulation by any governmental authority, which is so imprecise, ambiguous, vague, overbroad, or excessively general in its terms that it provides a pretext for arbitrary or discriminatory law enforcement, uncertainty in the minds of persons of common intelligence as to the limits of protected communication, and creating a chilling effect on the unrestrained exercise of freedoms clearly not proscribed, shall be wholly void on its face; except that insubstantial defects may enable the courts to merely sever unenforceable parts or specific applications thereof; c. Prior restraint shall not be imposed on any communication by institutionalized or informal censorship or coercion, however subtle, unless, in each instance such restraint is sought, a fair judicial hearing, following proper notice, is held; except where the required delay may cause irreparable harm, upon which a temporary restraining order, subject to a prompt subsequent hearing, may be issued . . . (end excerpt)

Again, a direct quote.

The entire text of Ladanyi's virtual First Amendment, as well as a reproduction of a flow chart prepared by a Cornell University law professor outlining the Supreme Court's functional revisions to the First Amendment, is contained in Barry Krusch's online book, Would The Real First Amendment Please Stand Up?

Another group of facts. So, while this text was removed from Wikipedia, on the claim that this was merely "biased opinion", a neutral observer would have to conclude that this is simply a recitation of facts. Accordingly, the passage ought to be reinstated.

User:68.209.177.178

There have been many, many books written about the First Amendment. You happen to be impressed by the two you cite over and over. That's your privilege, but it's not a basis for cluttering the main article with items (even undisputed facts) about the contents of those particular books. For example, the article doesn't have a "See also" for Alexander Meiklejohn, and Wikipedia doesn't even have an article on Harry Kalven, Jr., although both of them were more notable in First Amendment analysis than Ladanyi or Krusch. JamesMLane t c 00:40, 8 May 2006 (UTC)

Pythagoras' addition

User:Pythagoras has added a rewritten section about the virtual first amendment into this article again, but is now claiming that since the rewritten section hasn't run the gamut of consensus and discussion, it is not violative of consensus to include the section in the article. The prior consensus is summarized here. My position is that the section (seen here), while possibly presented in a slightly more NPOV manner than the previous section, (1) still overemphasizes a minority viewpoint, giving it undue weight without any balance, (2) is self-referential at times, and (3) is still POV and OR. Any other comments? - Jersyko·talk 14:21, 24 May 2006 (UTC)

• I have filed an Rfc on this, fyi. - Jersyko·talk 14:25, 24 May 2006 (UTC)
  • I think pythagoras addition may be a way to look at it. But most lawyers and law professors simply list the famous cases and what they stand for. Pythagoras' analysis is too abstracted a treatment to place near the very front. If his analysis is close to representing how the courts analyze the first amendment violations, then I think the material should either go to a separate article on Theories of First Amendment Analysis or be placed toward the end of this article. If the article is made unduly large by his addition, we should edit for size and provide the link to a separate article, because the diagram is cool. John wesley 20:54, 24 May 2006 (UTC)

I know a crank when I read one. There may be absence of consensus on the external link; but the several paragraphs will not do, and have been removed before. Septentrionalis 23:16, 24 May 2006 (UTC)

User:Pythagoras is now in violation of WP:3RR as he/she has readded the section to this article for a fourth time today. - Jersyko·talk 01:26, 25 May 2006 (UTC)

I like the addition, seems to avoid the neutrality concerns in the previous version. User:MWeston

• Welcome to Wikipedia. Please seek consensus rather than simply reverting. That's how it works here. --jpgordon∇∆∇∆ 17:55, 25 May 2006 (UTC)

This addition is rife with neutrality problems. For example: "So, under the text of the 1791 First Amendment, if jurists are faced with certain hypothetical situations, a certain mode of analysis is mandated." To the contrary, judges and scholars have argued for multiple different modes of analysis. This addition takes one (contested) viewpoint and elevates it to the status of established fact about which there can be no reasonable doubt. JamesMLane t c 18:06, 25 May 2006 (UTC)

James, that is an interesting point, but it seems to lead to a logical contradiction, and in fact seems to beg the question. The fact that an assertion is contested does not mean that other assertions are equally legitimate. For example, it is a fact that the Constitution states that it is "the supreme law of the land", and there really is no legitimate mode of interpretation that can say that the word "no" means "some", or that freedom of speech can be turned into its exact opposite through what some refer to as "interpretation". It ought to be obvious that there is no text in the Constitution proper which has mandated the nodes which appear in the second flow chart. If there is text in the Constitution to that effect, I would like to know about it! At the very least, the article as it stands should appear, perhaps with some minor editing to remove the neutrality problems that you assert are present. User:MWeston

Your opinion amounts to this: "It ought to be obvious that there is no text in the Constitution proper" that supports certain decisions of the majority of the U.S. Supreme Court, or that supports some of the dissenting opinions that Justices have given. Obviously, those Justices would disagree with you. Just because they're on the Court doesn't mean they're right, but Wikipedia isn't going to take a position for one side or the other on a subject that's contested by experts. Besides, if it's so obvious, don't we make the point adequately by providing the reader with the complete and exact verbatim text of the First Amendment? JamesMLane t c 21:04, 25 May 2006 (UTC)

I don't see any harm in the addition. It expresses the point of view that the Amendment means what it says. Eliminating that point of view doesn't seem neutral to me. User:Firefox109

"It expresses the point of view" - exactly. See WP:NPOV. Articles are not supposed to express any point of view. - Jersyko·talk 14:29, 27 May 2006 (UTC)

Actually, it is supposed to express a "neutral" point of view. The article as is has eliminated the "point of view" (if that is the correct term) that the meaning of the First Amendment could be "literal" (i.e. textual) or "virtual" (i.e. interpretive). It eliminates it entirely. Nothing neutral about that.

• Given the flood of sockpuppets, I've requested semi-protection on this article. --jpgordon∇∆∇∆ 18:38, 25 May 2006 (UTC)

I'm not really sure what a "sock puppet" is, but as a supporter of free speech, I think people ought to have the right to make statements whether or not other people agree with them. At any rate, I consulted the "neutral point of view" policy, and it looks to me like this article has been hijacked by some people with axes to grind. The policy is pretty clear on this point. "Many of us believe that the fact that some text is biased is not enough, in itself, to delete it outright. If it contains valid information, the text should simply be edited accordingly." So the actions of a few people here seem well outside of this policy, they have made no effort at all to edit it. This is a pretty sad commentary, especially where the First Amendment is concerned. By the way, I had the opportunity to read the Krusch book, and even though it has a liberal tone in parts, it is a real eye-opener. This small essay only touches on a few of the arguments in that book. User:Bush2008

• Good idea on the semi-prot, it was semi-protected before and it helped ease the flood of reversions for awhile. However, since there's obviously a lot of sockpuppetry going on here, and because this debate, in one form or another has been going on for over a year now, I think it might be wise, though unfortunate, to see what further steps can be taken to prevent this editor from continuing to add the information into the article against consensus, in violation of sockpuppetry rules, and in violation of 3RR. Oh, and Bush2008/Pythagoras/MWeston/JustTheFacts - please see what Wikipdia is not. Thanks. - Jersyko·talk 20:05, 25 May 2006 (UTC)

Removed content from intro

I removed the following because it seemed misplaced. Perhaps it belongs in an article about theories of the POV it's suggesting.

In a survey commissioned by the McCormick Tribune Freedom Museum in January 2006, only one in the one thousand Americans surveyed can correctly name the 5 freedoms in the First Amendment, compared to the 22% who can name the five main characters in The Simpsons and the 24% who can name the three judges on American Idol. The margin of error was 3%. [2]

If someone thinks it belongs elsewhere in this article, feel free to work it in. Placed where it was, it came across as POV. Moulder 07:13, 25 June 2006 (UTC)

Freedom of the press

When the amendment was written, did the word "press" mean "printing press" only, or had the word already been abstracted to mean journalism and political opinion writing?Thomaso 08:40, 18 September 2006 (UTC)

I think Freedom of the press#History is instructive here. Newspapers first started being printed in the early 1600s, so there was over 150 years of journalism before the adoption of the First Amendment. It seems that "press" was becoming more synonymous with "journalism" by the late 1700s. The strict licensing scheme in England, however, was most likely the motivation for including the Freedom of the Press clause in the Amendment. The licensing restricted both operation of the press and the content of what was printed. So, regardless of the assumed meaning of "press" in the First Amendment at the time of its adoption, practically, it meant both the actual press and journalism generally. · j e r s y k o talk · 13:40, 18 September 2006 (UTC)

sigh / vandalism

The constant vandalism to this page is harshing my mellow. Is it time for semi-protection again? --lquilter 20:14, 11 January 2007 (UTC)

I don't know that it's been bad enough lately to warrant a semi-prot. But it has worsened a bit today, and if it keeps up . . . · j e r s y k o talk · 22:36, 11 January 2007 (UTC)

Think this needs a citation?

"The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of Rights, contains an equivalent guarantee."

Off the top of my head, I'm pretty sure the French Declaration of the Rights of Man does contain a guarantee concerning religious freedom, however I'm not too sure how far this goes exactly without looking it up; personally, I think it's something open to interpretation, which would require some sort of analysis as to how the First Republic upheld it. Either way, I don't think that this is a statement we should present as fact without some evidence; maybe a restructured comment referring to similar guarantees in the French Declaration of the Rights of Man (which, incidentally, is its correct title).

137.205.251.1 06:14, 28 March 2007 (UTC)

I agree a citation would be good. (The DOROM says "No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law." ([3][Columbia Law School]) I'm not sure whether that contradicts the claim, though. Jackrepenning 04:27, 16 August 2007 (UTC)

Basis for Tax Exemptions

I am curious about the basis for tax exemptions granted to religious institutions. Is this a consequence of the first amendment? What is the reasoning? Thanks --Lbeaumont (talk) 13:41, 6 January 2008 (UTC)

It is not addressed in the First Amendment as there was no such thing as income tax at the time it was written (that came later with the 16th Amendment). The exemption for churches is written into the tax code, not the constitution and was a compromise based on First Amendment principals. --Loonymonkey (talk) 20:18, 6 January 2008 (UTC)

Another area of First Amendment protection

I think we have missed an important area, namely compulsory speech, particularly as it interrelates with religion.

The following is the text that I inserted in the Frank Murphy article, which I think deserves some sort of consideration here:

During World War II, Murphy supported First Amendment rights as patriotism and nationalism became increasingly fervent. Some state governments passed laws requiring children to salute the flag and pledge allegiance each morning in school. Some religious groups protested these compulsory acts of patriotism . They argued their religion forbade their worship of secular images. Murphy voted with the majority to strike down that law in West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In doing this about face from his earlier concurrence in Minersville School District v. Gobitis, Justice Murphy believed he had rectified an unfortunate and mistaken decision made when he was new to the court.

Additionally, we have actions which impinge on the free exercise of religion. I recognize that Murphy was on the dissenting end of this opinion, but in any event the court was ruling on the issue:

In Prince v. Massachusetts his fierce dissent declared: "Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger." Prince v. Massachusetts, 321 U.S. 158 (1944),

For your consideration. 7&6=thirteen (talk) 15:18, 11 February 2008 (UTC)

International Significance

Part I

This section states that American freedom of the press is one of the most extensive in the world. However, according to Reporters without Borders, the US falls in the third-highest category of press freedom -- many developed nations are in the 1st or 2nd category & almost all developed nations are in the top 3. This implies that the US is actually more restrictive in press freedoms than most developed nations.K.d.stauffer (talk) 22:10, 28 February 2008 (UTC)

I doubt the above conclusion. Reporters without Borders' ranking is dubious. For example, it ranks Canada as freer than the US. I know of at least two incidents in the past year in which writers, both newspaper columnists, were summoned before a "human rights commission". The offence was the "hate crime" of criticizing Islam. The commission has the power to fine the defendants. I'm not sure what else. But, of course, there is also the humiliation and Orwellian experience of having to explain one's motives for criticizing the religion. As a religion is a system of beliefs and ideas, it is bizarre that one should have to explain one's motives in criticizing or ridiculing ideas in a supposed free society. —Preceding unsigned comment added by 18.87.1.114 (talk) 18:30, 8 April 2008 (UTC)

Reporters Without Borders's ranking is highly subjective. On what objective grounds were those rankings based? --SMP0328. (talk) 02:18, 12 May 2008 (UTC)

Part II

Isn't it a little misleading to mention the Bill of Rights 1689 in the way that it is used now? As I understand it the Bill of Rights related mostly to Parliaments rights over the monarch and would therefore only be rights of the people at large by proxy. In the same way that saying that the Magna Carta gave the average peasant (the vast majority of the population) the right to trial by his peers, when it was in fact gave the feudal Barons the right to not be tried by "lesser people" (the Magistrates appointed by the King.) --Tyrfing (talk) 03:36, 12 March 2008 (UTC)

You are correct as to the limited reach of the 1689 Bill. However, it is not misleading. It isn't that narrow and self-serving 'purpose' of the Bill that makes it relevant; look at the bigger picture: put another way, the purpose of the bill was subject [one branch] of government to the law. Government, or agents of government, not being above-the-law, was a very novel concept then and at the time of the framing of the U.S. Constitution. And many governments around the world today still do not follow the practice. The US constitution may do a better job than the English did a century earlier, but there is a definite similarity in the concept. Non Curat Lex (talk) 05:24, 12 March 2008 (UTC)

Pruneyard Doctrine Discussion: NPV?

I'd like to raise that the Pruneyard Doctrine discussion in the "Libel, slander, and private action" section doesn't seem to hold a neutral point of view; it seems rather slanted in favor of the property owners. Specifically, it seems to take on a rhetorical tone, as if to begin a debate. I have not updated that section because I am not knowledgeable of the circumstances discussed in the section; can anyone comment?

Tvynr (talk) 19:52, 4 June 2008 (UTC)

I agree; the author only seems to bring up the Pruneyard Doctrine in order to denounce it's validity. Although I'm unfamiliar with the legal concepts in question, this discussion certainly doesn't have the position-neutral tone that I've come to expect from Wikipedia. Ruke47 (talk) 21:47, 23 November 2008 (UTC)

The citation for Debs v. United States

The correct citation is 249 U.S. 211, not 49 U.S. 211 —Preceding unsigned comment added by 65.222.231.2 (talk) 13:47, 1 October 2008 (UTC)

Correction made. Thanks for pointing out the error. SMP0328. (talk) 19:19, 1 October 2008 (UTC)

Sedition Section Wrong

Quote: "The Supreme Court never ruled on the Alien and Sedition Acts of 1798 and even the leading critics of the law, Thomas Jefferson and James Madison, argued for the laws' unconstitutionality on the basis of the First Amendment, among other Constitutional provisions..."

The argument was not that the Sedition Acts violated the First Amendment, but Congress was not vested with any powers over speech or the press, i.e., Sedition Acts would been unconstitutional if there had been no First Amendment. The purpose of the First Amendment was a declaration that no such power over the press or speech had been delegated and not a restraint of an existing power belonging to Congress. LawPro (talk) 07:45, 23 October 2008 (UTC)

Quotation missing quotes

Temporarily commented this section:

The Pruneyard doctrine privileges protesters, who would otherwise be trespassers, from being ejected from the property, as would other trespassers. How does such a privilege against enforcement of private property rights arise from a state constitutional provision that protects individuals from government censorship? Moreover, the doctrine deprives the property owner of one of their rights, as well as forcing them to allow their premises to become a forum for speech for which they do not approve. Arguably, this violates the free speech rights afforded by the U.S. Constitution, as well as the protection to property rights under the Takings Clause.

It seems to be missing quotes, making it appear as if Wikipedia is editorializing. Could some kind soul read through the material and add quotes at the appropriate places? Regrettably, I don't have the time. 82.95.254.249 (talk) 19:55, 23 February 2009 (UTC)

Should this have a citation?

"Additionally, in the 20th century, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state." This sentence in the intro is uncited, and I can't seem to find anything in the article on the 14th amendment or due process on it. Perhaps it should have a citation for whatever decision it's referring to? I'd certainly find it helpful, at least :) --bd_ (talk) 02:59, 24 May 2009 (UTC)

I've clarified some of the Introduction's wikilinks. For example, now there's a wikilink (in the word "applies") which leads directly to the Supreme Court decisions which ruled various provision of the First Amendment to be applicable to the States. I hope that helps. SMP0328. (talk) 03:13, 24 May 2009 (UTC)

Internet

Are the any relevant post-Internet updates? Seems like something people (like me) will wonder. Noloop (talk) 16:10, 16 July 2009 (UTC)

The term "press"

The meaning of "the press" is a bit disputed. Most scholars, I think, agree it refers to the printing press. So freedom of speech and freedom of the press together encompass freedom of expression. When I press the "Submit" button below, I am exercising my freedom of press. The news media, however, like to think it confers special rights on them, and the 1st Amendment is often described as singling out the journalism industry for special rights. That's seems pretty silly to me, if you think about the context: the Bill of Rights specified fundamental individual rights.

Anyway, we need to be careful about phrases like "In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court ruled that the First Amendment did not grant a member of the press the right to refuse a subpoena from a grand jury." Regardless of whether you agree with my preferred interpretation, we shouldn't imply one interpretation is right. I propose this article avoid the phrase "press" except when citing the 1st Amendment. If we want to refer to journalism, we should say that rather than "the press." I edited the above sentence, but it was reverted for reasons I don't understand. The phrase "member of the press" obviously uses "press" to mean the journalism industry. Noloop (talk) 19:07, 16 July 2009 (UTC)

I wikilinked "press" to the Journalism article. I hope that clarifies things for you? SMP0328. (talk) 19:17, 16 July 2009 (UTC)

I'm not sure what it was meant to accomplish. Regardless, I wasn't requesting clarification. I was proposing the article not refer to journalists as "the press" since that is part of a dispute (and probably the wrong part). Noloop (talk) 19:27, 16 July 2009 (UTC)

I have changed the wikilink to Journalist. The courts, federal, state and local, universally interpret the First Amendment's reference to the "press" to mean journalism and journalists. Anyone who reports the news is covered by freedom of the press, not only professional journalists. SMP0328. (talk) 19:34, 16 July 2009 (UTC)

No, the courts don't universally say "press" means journalists. "The press" refers to the printed word. In that context, "member of the press" is meaningless. It is "every sort of publication which affords a vehicle of information and opinion." If your only concern was professional vs. unprofessional, then lets change "member of the press" to "journalist." Noloop (talk) 01:18, 17 July 2009 (UTC)

I have made that change, along with changing "reporter" to "journalist". I also made two unrelated wording tweaks. SMP0328. (talk) 02:39, 17 July 2009 (UTC)

Does an appeal of Guantanamo captive Ali Al Bahlul's verdict, on 1st amendment grounds, merit coverage here?

Guantanamo captive Ali al-Bahlul's military defense attorneys filed a fifty page appeal of his sentence on first amendment grounds: "Mr. al Bahlul is not a sympathetic defendant. He embraces an ideology that glorifies violence, justifies terrorism and opposes constitutional democracy. As offensive as it may be, [Bahlul's film work] is speech that falls within the core protections of the First Amendment, which forbids the prosecution of `the thoughts, the beliefs, the ideals of the accused."

• Carol Rosenberg (2009-09-02). "Bin Laden aide's Gitmo conviction appealed". Miami Herald. Archived from the original on 2009-09-02.

So, does this appeal merit coverage in this article?

Cheers! Geo Swan (talk) 22:21, 2 September 2009 (UTC)

I would add it to the article once there has been a ruling on the appeal. SMP0328. (talk) 23:11, 2 September 2009 (UTC)

I concur with SMP0328. Lawyers argue crazy things all the time on appeal but it's really the judicial decisions on those appeals that matter in the long run (and become notable enough for mention on Wikipedia). --Coolcaesar (talk) 09:21, 4 September 2009 (UTC)

Exemptions

Surely an exemption section is required detailing where the First Amendment doesn't apply, e.g. certain obscene/pornographic material (Miller test), matters of national security, and supporting the boycott of Israel. The Patriot Act reduction on civil liberties would also affect the freedoms afforded by the First Amendment, should this be mentioned here? Zarcadia (talk) 09:48, 8 October 2009 (UTC)

Citizens United v. Federal Election Commission

Should the implications of Citizens United v. Federal Election Commission be included under the heading "Political Speech"? Specifically, I'm referring to the majority opinion's conclusion that corporations and unions are entities protected by the 1st Amendment and have a Constitutional right to political speech. PenoftheAuthor (talk) 18:16, 21 January 2010 (UTC)

That decision definitely should be added to the article. SMP0328. (talk) 23:07, 21 January 2010 (UTC)

Missing in Intro: Right to assemble and petition a redress of grievances

In my lifetime, the freedom to assemble and petition our government for a redress of grievances has created the largest political changes. From the civil rights movement, to the anti-Vietnam war movement, to the tea party movement, Americans have manged to alter the national course of events by exercising this political right and making the government take notice when it would rather not. Freedom of speech, the freedom to individual expression, and freedom to peaceably assemble and put political clout [redress of grievances] to that free speech are equally important. It is missing in the introduction and, I believe, it should be given just as much importance as each other part. kmh (talk) 16:31, 18 March 2010 (UTC)

References to those rights are now part of the Introduction. Thanks for pointing out the omission. SMP0328. (talk) 23:15, 18 March 2010 (UTC)

Pledge of Allegiance

In Lane v. Owens (03-B-1544, United States District Court, District of Colorado), the First Amendment was used to successfully argue that school children could not be compelled by law to recite the Pledge of Allegiance. —Preceding unsigned comment added by 96.52.231.179 (talk) 07:00, 21 March 2010 (UTC)

The Supreme Court ruled in West Virginia State Board of Education v. Barnette (1943) that it was a violation of the First Amendment's Free Speech Clause to require school children to recite the Pledge. If nobody does it before me, I add it to the article some time this week. SMP0328. (talk) 19:18, 21 March 2010 (UTC)

Why no section on religious free speech?

There really needs to be a section on how somehow the government thinks it's a-ok (when actually it's unconstitutional) to prohibit religions and churches from endorsing certain political candidates. I came here looking for information on that and found none much to my dismay. --PaladinWriter (talk) 10:17, 6 May 2010 (UTC)

Pretty sure political endorsements don't jive with tax-exempt status. --Cybercobra (talk) 12:08, 6 May 2010 (UTC)

Be bold by adding reliably sourced material about that subject. SMP0328. (talk) 02:24, 7 May 2010 (UTC)

SB1070

Should'nt there be an addition or a change in the First Amendment that includes racial profiling. For so long African Americans have been racial profiled. Now we are back at this same place just with a different Race. I don't believe this is fair that someone has to go through life worring about whether they will be profiled because of the color of their skin, or they way they dress, their hair, or even the music they like. There should be a law that premits this from happening.

Myshine4real (talk) 03:40, 8 June 2010 (UTC)Ms. Harris

This page is for discussing what should be in the Wikipedia article, not for discussing what should be in the Constitution. If there's a notable movement to amend the First Amendment along the lines you suggest -- notable as reflected in coverage in other media -- then our article could report, neutrally, on that movement. JamesMLane t c 15:22, 8 June 2010 (UTC)

Fourteenth Amendment connection

In the lead paragraph, an un-footnoted sentence notes twentieth century decisions that the First Amendment restricts more than just Congress. I think there should be an expanded mention of how the Fourteenth Amendment modifies the First Amendment.

Barring that, I believe there should be a sub-headline called something like, Effect of the Fourteenth Amendment on the First at the major place where the Fourteenth is mentioned in the text.

Barring that, the lead section sentence on the Fourteenth should be footnoted. (fotoguzzi) 69.64.235.42 (talk) 16:18, 4 July 2010 (UTC)

I have added to the Introduction a reference to the first case to incorporate any part of the First Amendment to the States. Gitlow v. New York, 268 U.S. 652 (1925). SMP0328. (talk) 17:34, 4 July 2010 (UTC)

Peaceable assembly

I have a question, from one having no formal education in constitutional law.

The first amendment explicitly protects the right "of the people peaceably to assemble, and to petition the government for a redress of grievances". Why then do I have scores of images in my mind of peaceful demonstrations, with an obvious political intent, doing no harm to either public property or private persons, being violently broken up by police? They announce it to be an "unlawful assembly" over the megaphone, and then break it up.

If this were but a few isolated events taken place over the years then I would not bother bringing it up. But it really isn't; you see it every few weeks on the news, and the reporters reporting the event don't even bother to remind the viewer that what they are seeing is the repression of an expressly protected constitutional right. Can someone explain this to me?

Really, I am not trying to grandstand here, I am honestly curious. I came to this article looking for answers and could find none. Could someone please add to this article, or create a new article, explaining to me why the routine breaking up, often violently, of otherwise peaceful assemblies is such a common and, as far as I can tell, accepted occurrence in America? —Preceding unsigned comment added by 70.226.120.74 (talk) 20:40, 29 July 2010 (UTC)

Were the demonstrations on public or private land? Were the demonstrators interfering with another person's property? Were any of the demonstrators violent or threatening to become violent? These are important questions in determining whether a violation of the right to peaceable assembly has occurred. BTW, you weren't asking a dumb or ignorant question; you were seeking knowledge, which is never dumb or ignorant. SMP0328. (talk) 00:04, 30 July 2010 (UTC)

I suppose what I am suggesting is an article clearing up these issues. For instance, how have the courts historically ruled on the meaning of "peaceable assembly"? Obviously it means more than simply the right to get together with your friends in your own house and talk politics, or starting an internet petition, but how far does it go? What is the opinion of the courts on the point at which the government is justified in ruling an assembly on public land unlawful? When there is only a vague possibility of the assembly turning violent or destructive to property? When they are too loud? When they are blocking traffic? When they have Molotov cocktails in their hands but haven't thrown them yet? Have the courts ever had to rule on the lawful or unlawfulness of a specific assembly that would help illustrate? Also; if it can be proved that the government unjustifiably dispersed a peaceable assembly, what relief, if any, do the assemblers have in the courts? Can they sue? etc., etc., etc.

John Leland, James Madison, and political dealmaking

I've just introduced a citation of this book into the Separation of church and state in the United States article. Separately from the point for which I cited it, the book describes some wheeling and dealing re the First Amendment between John Leland and James Madison. The book says that Leland had planned a campaign against ratification of the constitution, that as a powerful Baptist he would probably have been able to prevent ratification by Virginia, and that without ratification by Virginia the constitution would have failed. However, Madison and Leland cut a deal for Leland to withdraw as an antiratification candidate and instead work to convince Baptists to vote for ratification in exchange for Madison introducing an amendment in the first Congress with the wording of the religion clauses of the First Amendment. Serious scholars probably know the story, but it was new to me and was interesting to learn. I thought that it might deserve a mention here, but I didn't want to make a ham-fisted edit of the Background section and plunk it in. Instead, I've mentioned it here thinking that one of the regular editors of this article might put it in a bit more artfully than I would have. Wtmitchell (talk) (earlier Boracay Bill) 07:08, 11 September 2010 (UTC)

Ex Parte Jackson

Under the Freedom of Speech section, the article states that, "The Supreme Court never ruled on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century". I think that this statement is wrong. In Ex Parte Jackson, 96 U.S. 727 (1877), the Supreme Court upheld the Comstock Act against a First Amendment challenge (among other things). While it is true that Jackson also deals with Enumerated Powers and Fourth Amendment issues, the freedom of speech issue is addressed and settled:

"In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals." (id., at 736)

So I think that, unless we want to be picky about distinguising freedom of speech from freedom of press, at least one pre-1900 Supreme Court case concerned the constitutionality of a federal law on free speech grounds.

Accordingly, I think the article should be amended, but as an anonymous user lack the means to do this.

128.12.32.48 (talk) 08:09, 21 October 2010 (UTC)

Separation of church and state

Neither the phrase nor the concept of "separation of church and state" can be found in the First Amendment. The phrase "separation of church and state" has been taken out of context from a letter written by Thomas Jefferson. The letter was unrelated to constitutional documents authored by Jefferson. Wikipedia has inserted this phrase into the definition of the First Amendment to insinuate that this phrase or its concept exists within the First Amendment itself. It does not, and should be removed. Duffbash (talk) 19:42, 21 October 2010 (UTC)

Hmmm... The final sentence of the lead para reads, "The amendment is also interpreted as the constitutional origin of the separation of church and state as interpreted by the Supreme Court of the United States.", supported by an explanatory footnote citing several sources. I think that footnote and the cited sources do provide good support for the "... is also interpreted as ..." characterization. Out of curiosity, I took a look at the timeline:

• 1787-09-17 - Ratification of the U.S. Constitution[4]
• 1791-12-15 - Ratification of the first Amendment[5]
• 1802-01-01 - Date of Jefferson's letter to the Danbury Baptist Association[6]

Over ten years between the ratification of the first amendment and Jefferson's 1802 letter. The explanatory footnote mentions subsequent SCOTUS cases in 1879 and 1947. However, see Thomas White (2007), First Freedom: The Baptist Perspective on Religious Liberty, B&H Publishing Group, pp. 105-107, ISBN 9780805443875, re interaction between Jefferson and John Leland prior to the ratification of the constitution. Also see Paul Charles Kemeny; Clarke E. Cochran; Derek H. Davis (2007), Church, state, and public justice: five views, InterVarsity Press, pp. 96–99, ISBN 9780830827961, and no doubt other relevant sources.

IMHO the statement in the lede, though adequately supported by the footnote, could use clarification later in the article. Wtmitchell (talk) (earlier Boracay Bill) 00:48, 22 October 2010 (UTC)

I improved the wording of the Establishment Clause material in the Introduction. I also removed the footnote's reference to the Establishment Clause being "under attack" by some federal judges. "Attack" is a loaded word and there could be other reasons for those judges disagreeing with the separation interpretation of the Establishment Clause (e.g., they could believe the Clause requires governmental neutrality toward religion, rather than governmental separation from it). SMP0328. (talk) 02:34, 22 October 2010 (UTC)

Freedom of Speech, where it has limits

The U.S. Constitution does not ban nor promote any laws, be it federal or state, to ban speech in the public. However, there are laws in existence to prevent libel, slander, defamation of ones' character and verbal hate crimes ("hate speech").

Five known public arenas where the freedom of speech does not completely apply in:

• 1. Private property - such as the workplace, a for-profit business can prohibit any form of speech the business management and executive wants or desires, out of concerns for professionalism. The consequences of violating workplace rules may or will include termination, and a discharged former employee can't always fight back for their job, when their speech was proved to be disruptive in a work environment.

• 2. Government-run entities - Public education or schools for instance, and buildings of functions where the government provides services to the public. In a public school like a grade, middle/Junior high or (senior) high levels, a pupil or student can get expelled, suspended and/or put in detention for verbal abuse and talking inappropriately during class or within the boundaries of school campus.

• 3. Indian Reservations - Indian tribes are separate governmental bodies, said the part of the U.S. constitution that calls for state, federal and tribal laws. They can have their own laws, their own enforcement and their own prosecution in the B.I.A. (Bureau of Indian Affairs) court system. But, all Indian reservations and communities in the U.S. recognize the constitution and tribal members of all 565 federally-recognized and 100? state-recognized tribes/nations are U.S. citizens.

• 4. The Military - The U.S. Military Code applies on the bases wherever they are located, in the contiguous U.S., territorial jurisdictions or outside the U.S. et al. They have their own police (the MP), military courts and prisons, and in the Military Code 174 prohibits officers or employees in the armed forces (esp. in uniform on duty) from criticizing the president of the United States, in most part because the president is their Commander-in-Chief of the U.S Armed Forces.

• and 5. Churches or places of worship - There is complete separation for churches and religious sects on their own properties to decide on legal matters, one reason why you read/hear about news stories of runaway fugitives/criminals seek refuge in a place of worship away from the police during chases, and that law enforcement awaits on the perimeter of church property until the surrender or the go-ahead by the church (most have their own security) in case they are in danger. + 71.102.12.55 (talk) 01:34, 3 January 2011 (UTC)

Is there a suggestion for improvement of this article in there somewhere? Wtmitchell (talk) (earlier Boracay Bill) 00:04, 4 January 2011 (UTC)

Establishment Clause & NPOV

Something about the phrasing in the establishment clause section lacks NPOV. —Preceding unsigned comment added by 70.53.221.5 (talk) 08:36, 13 February 2011 (UTC)

Please be more specific. What about that section do you believe violates NPOV? SMP0328. (talk) 18:03, 13 February 2011 (UTC)

Slight bias

This article makes out conservatives to be strict interpretationalists, when this is not always the case. 146.129.250.98 (talk) 20:51, 14 February 2011 (UTC)

Please provide an example. SMP0328. (talk) 20:58, 14 February 2011 (UTC)

Vandalism?

In the section describing the liberal view of freedom or religion, in a place where it seems the letter by the founding father Jefferson belongs, there is an unrelated quote by President and actor Reagan. Was this article on freedom censored? Skintigh (talk) 20:23, 30 March 2011 (UTC)

It looks like that happened in this January 2011 edit. Wtmitchell (talk) (earlier Boracay Bill) 02:37, 31 March 2011 (UTC)

Petition and Assembly

In Cox v. Louisiana, 379 U.S. 536 (1965), the Supreme Court held that a statutory “disturbing the peace” conviction for a peaceable demonstration containing speech that may potentially incite violence infringed on a demonstrator’s First Amendment rights to freedom of speech and assembly. The court ruled that the constitutional rights of freedom of speech and assembly could not be denied because of hostility to their assertion or exercise, noting that first amendment protections are most necessary when their exercise invites dispute, induces unrest, and stirs people to anger.

In Edwards v. South Carolina, 372 U.S. 229 (1963), the Supreme Court held that the arrests and convictions of 187 marchers were an attempt by South Carolina to “make criminal the peaceful expression of unpopular views” where the marchers’ actions were an exercise of First Amendment rights “in their most pristine and classic form.” The Court described the common law crime of breach of the peace “not susceptible of exact definition.” In Edwards, Justice Clark dissented, arguing that the City Manager’s action may have averted a major catastrophe because of the “almost spontaneous combustion in some Southern communities in such a situation.” — Preceding unsigned comment added by ConLawCookies (talk • contribs) 20:52, 4 April 2011 (UTC)

Newbie Question

Can someone explain why this passes WP:PRIMARY ? (W090584 (talk) 16:09, 7 April 2011 (UTC))

Your question is rather vague. What part of the article are you referring to specifically? --Cybercobra (talk) 23:36, 8 April 2011 (UTC)

I think he meant WP:PRIMARY TOPIC. See Talk:First Amendment (disambiguation)#Requested move, take 2. Based on traffic (99%), incoming links (88%), and links misdirected to the former DAB page (100%), it's clearly the primary topic. TJRC (talk) 22:24, 19 May 2011 (UTC)

Semi-protection

Has this article been semi-protected? The history log says a hidden protection tag was added to the article, but there's no log entry indicating that the article was actually semi-protected. SMP0328. (talk) 04:00, 26 May 2011 (UTC)

The log shows it was semi-protected most recently in October. --jpgordon^{::==( o )} 05:48, 26 May 2011 (UTC)

Religious freedom

"The first amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny." This is nonsense opinion. The first amendment of the Constitution was written to protect religious tyranny from creeping in and having merit in the government just as well. This needs to be corrected. One of the main reasons our founding fathers fled England was to break away from the religious enforcement of the state church of England. — Preceding unsigned comment added by TBM72 (talk • contribs) 20:35, 21 June 2011 (UTC)

Edit request from 216.138.118.154, 17 August 2011

According to liberals, the Establishment Clause erects a wall of separation between church and state

Please remove according to liberals. Liberals are not an established group with established thoughts or ideals. Many people believe or have been educated based upon the concept of separation of church and state, liberalism is not a qualifier for this belief.

At least ask for a citation with regards to how liberals are responsible for this idea. 216.138.118.154 (talk) 18:23, 17 August 2011 (UTC)

I tweaked the sentence to say "some liberals" to avoid generalization and for consistency with the following sentence ("According to some conservatives...."). Also provided a citation that attributes this view to liberals.--JayJasper (talk) 20:41, 17 August 2011 (UTC)

Actually, to the IP editor's point, that doesn't fall along strictly ideological lines and saying "some" just makes it sort of weaselly. We should simply present the two opposing views without labeling either. Also, grammatically it should be a single paragraph. Starting a new paragraph with "However,..." gets into WP:WTA territory. And finally, why is there a sentence about a 4-year old opinion poll in there? It lends nothing to an understanding of that section. It's not like it's a survey of Constitutional scholars. That should probably go. --Loonymonkey (talk) 16:02, 18 August 2011 (UTC)

Bill of Rights image

The photo of the Bill of Rights used with this article is not the final Bill of Rights approved by Congress and the states. It has 12 articles, not 10. Not knowing the history of the document well, I don't know if that is important. Three.erdad (talk) 14:57, 12 October 2011 (UTC)Ladd Brubaker

The Bill of Rights was proposed as twelve amendments. Ten became the Bill of Rights. One became the Twenty-seventh Amendment and one was never adopted. So that image in the article is correct. SMP0328. (talk) 22:14, 12 October 2011 (UTC)

As it was written...

I would like to add, or at least confirm, that the first amendment was a primary and formal reference to freedom. I am looking for the quote and will try to provide but cannot find: "Take from me all my liberties, but allow me the freedom of speech and I shall win them all back." or something to that effect.

Looking for help. Jambay (talk) 06:24, 27 October 2011 (UTC)

All of which belongs in "Background" section. Still trying to find the "original intent" of the first amendment. Jambay (talk) 06:58, 27 October 2011 (UTC)

Meaning

The Establishment Clause's meaning has been a point of contention among different groups and its meaning has been interpreted differently at different times in American history. One view is that the Establishment Clause erects a wall of separation between church and state, although this term did not appear in the First Amendment but in a personal letter sent by Thomas Jefferson to religious dissenters in Connecticut. Another view is that the Establishment Clause solely prevents the government from establishing a state church, not from publicly acknowledging God.

This section is, as its sources make clear, a compilation of opinions available on the web. Even if they were the best websites available, this has no place in our article.

But they are not even the best the web has to offer. Most of them are ill-informed; the point that drives me to remove the section entirely is the claim that Jefferson's letter was written to "church leaders" in Connecticut. It was written to a congregation of Baptists; in the early nineteenth century, the Connecticut had an established church, and it was Congregationalist; the State Government funded the Congregationalist sectarian institution, Yale, out of taxes paid by Baptists and Anglicans, which was constitutional - in 1806.

Please do not restore this; if we must have such a section, let us find what secondary sources have to say about this debate. But why should we have one at all? Septentrionalis PMAnderson 20:31, 27 October 2011 (UTC)

That material is properly sourced and is necessary to the article. It shows how the Establishment Clause's meaning has been debated since it was added to the Constitution. I have restored this material. If it is to be removed, it should via consensus. SMP0328. (talk) 20:38, 27 October 2011 (UTC)

That position is directly contrary to core policy. burden of evidence lies with the editor who adds or restores material. Septentrionalis PMAnderson 22:18, 27 October 2011 (UTC)

I don't normally edit articles on the Constitution, but I must agree with Pmanderson, on two grounds. First, I'm neutral on whether the section is needed; we also have the articles Establishment Clause and Separation of church and state in the United States. Perhaps a summary section belongs here, with "Main" article links, but any appearance of a POV fork should be avoided. Second, if there is a section, this is the kind of topic for which abundant and authoritative scholarship exists; one problem I see in the other two articles (at a mere glance) is perhaps too much reliance on primary and journalistic sources over secondary scholarship. One of the sources used for the material PMA wishes to delete is Beliefnet: the first article that comes up on their main page is "Halloween is a great opportunity to share the love of Jesus." So while there may be topics for which Beliefnet can be illuminating, this doesn't really seem like the best place to find the best scholarly sources on the Constitution. Cynwolfe (talk) 21:40, 27 October 2011 (UTC)

I agree with User:SMP0328. In fact, it seems like some of the original content was deleted from the article. I have reverted even further and restored it. Thanks! With regards, Anupam^Talk 21:42, 27 October 2011 (UTC)

On what grounds? That you agree with what's stated, or that you find sources such as Beliefnet or Student News Daily to be superior to works published by constitutional scholars? Cynwolfe (talk) 21:47, 27 October 2011 (UTC)

Hello, I've added in some more sources from Yale University Press as well as the ABDO Publishing Company that discuss the issue. Specifically, the source from Yale University Press states:

Conservatives claim that liberals misinterpret the establishment and free exercise clauses of the First Amendment. They point to the opinion written for the Supreme Court by Hugo Black in Everson v. Board of Education: "The 'establishment of religion' clause of the First Amendement means at least this: neither a state nor a Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another." The establishment clause, conservatives insist, precludes the national state from promoting any religious denomination but does not prohibit state governments and local communitites from developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals.

User:Cynwolfe, what do you think of this source? Also, please have a look at the other source, which discusses the liberal opinion on the issue. It states:

Government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions. This has been, and is, the liberal or "separationist" reading of the Establishment Clause.

I hope this helps and I look forward to your comments. With warm regards, Anupam^Talk 22:57, 27 October 2011 (UTC)

Yes, for me this is purely an issue of quality of sources, as I don't intend to delve into content and how best to represent the sources. There are many topics for which journalistic sources are apt, but when scholarship from university presses is available on a topic of history, it seems best to use them. Scholars may be arguing from a particular POV and offering an interpretation, but are far more likely than journalists to treat the underlying historical facts with care. Cynwolfe (talk) 23:31, 27 October 2011 (UTC)

Thanks for your comments. I am glad that you find the new references I added to be helpful. I agree that it is best to utilize references from university presses; anyways, they seem to corroborate the previous assertions buttressed by the journalistic sources. Best wishes, Anupam^Talk 23:59, 27 October 2011 (UTC)

I do not find either of those quotes, without author, source, or context, at all helpful; does Cynwolfe?

• Who wrote these? And who are the authors?
• Are these about the controversy, or contributions to it?

  As far as they can be read in isolation, the second one is, and the first may well be, s polemic for the conservative Truth against liberal Error; these are exactly as useless to the encyclopedia as polemics for liberal Truth against conservative Error.

• Do they represent a consensus of scholarship?

  Unlikely; who writes polemics for the consensus position?

If this paragraph is still here in 24 hours, without sny better defense than this, I shall propose Mediation. Septentrionalis PMAnderson 02:58, 28 October 2011 (UTC)

I don't have time to become involved in a well-informed, source-based discussion about the specifics of content, but I do support Pmanderson's efforts to exclude content that comes from poor-quality sources when high-quality sources are available. Beliefnet and journalistic media don't meet the criteria for RS for this particular topic, specifically: The reliability of a source depends on context. Each source must be carefully weighed to judge whether it is reliable for the statement being made and is the best such source for that context. I also agree that survey data pertaining to how people characterize the U.S. in terms of religion is non-informative and off-topic in an article on First Amendment to the United States Constitution; unless there is published scholarship that explicitly relates this data to explaining the First Amendment, the use of the data here is OR and synth. Cynwolfe (talk) 19:06, 28 October 2011 (UTC)

User:Pmanderson (Septentrionalis), you must gain consensus before removing information from the article. You have been reverted by two different users. I am not sure what the problem is. I quoted the reference published by the Yale University Press above that delineates the conservative viewpoint. Moreover, I also provided the quote from the other reference which elucidates the liberal opinion on the subject. I would encourage you to read WP:CENSOR. We cannot remove information from the article simply because we do not like it; rather, verifiable information that is buttressed by reliable sources is the standard. I hope this helps. With regards, Anupam^Talk 23:55, 29 October 2011 (UTC)

This is effectively a claim by a small bunch of editors that once they have inserted stuff into an article, it requires their consent (for they will prevent any other consensus) to find it misguided, terminally vague, and off-topic (this paragraph is all three) and take it out. That is a claim of WP:OWNership, and is contrary to policy. It has been a banning offense. Septentrionalis PMAnderson 03:25, 30 October 2011 (UTC)

Pew

According to the Pew Research Center, the majority of Americans identify with the latter view, with 67% of Americans even deeming the United States a "Christian nation".

Half of this is invention: what Pew asked was "is the United States a Christian nation?" The conclusion that this means agreement that the Federal Government can foster religion is Original Research, not supported by the sources, for the excellent reason that it is perfectly possible to believe that the US is a nation substantially made up of Christians, and that nevertheless religion does not require public support - and does not need it.

Please note that the POV here rests in having this section at all, not whether it favors the view it calls "liberal" or the view it calls "conservative". The view that there is a war between two monolithic armies is a fringe view, held only on the extreme left and the extreme right; this random collection of unascribed talking points is pointless: hire a blog. Is it a liberal view that the United States is not founded in the Christian religion? That a state-supported institution should teach about religion, but should not have any particular creed taught on its campus? That chaplains, both in the Armed Forces and in Congress, are injurious to republican government and to religion? Yet those are the views of Washington, Adams, Jefferson, and Madison. Septentrionalis PMAnderson 03:09, 28 October 2011 (UTC)

You stated that "The view that there is a war between two monolithic armies is a fringe view, held only on the extreme left and the extreme right." This statement is contradicted by four different academic references extant in the article, which neutrally delineate both conservative and liberal viewpoints on the issue. I would encourage you to provide a source for this statement. According to WP:V: "The threshold for inclusion in Wikipedia is verifiability, not truth—whether readers can check that material in Wikipedia has already been published by a reliable source, not whether editors think it is true." You seem to be violating WP:OR with your comments here. Until you can provide reliable sources for your claims, do not remove the information from the article, which is currently supported by high quality references from academic university presses. Thanks for your understanding and cooperation in this matter. With regards, Anupam^Talk 00:19, 30 October 2011 (UTC)

I insist that we arrive at consensus prior to removing this sourced content.– Lionel ^(talk) 01:35, 30 October 2011 (UTC)

The "meaning" of the establishment clause is not comprehensively covered by appealing solely to polarized views of liberals vs conservatives, ignoring the central ground, appealing to polls and popular presidents, and ignoring SCOTUS. --JimWae (talk) 02:45, 30 October 2011 (UTC)

WP:BURDEN remains clear. The burden of justifying inclusion rests on those who would like to include something. In the absence of consensus, we should be silent about this off-topic rambling. Septentrionalis PMAnderson 02:47, 30 October 2011 (UTC)

As for the substance, this is so much hot air. "Liberals believe" this; "conservatives believe" that. Who? Which liberals? Which conservatives? Any article which suggests that there is total agreement among liberals or conservatives on any points will be laughed at by anybody who knows any conservatives, and laughed at even harder by anybody who knows any liberals. Septentrionalis PMAnderson 02:51, 30 October 2011 (UTC)

Odd PM that you cite BURDEN because it undermines your argument. The content in question is sourced thus it passes WP:BURDEN. And we do not care about definitions of liberals and conservatives. All we care about is what the reliable source states. In this instance the sourced content must be restored. That is the way Wikipedia works. If you have a counterpoint or rebuttal to the content in question add it. I see no justification in policy for this removal of sourced content. Except perhaps WP:DONTLIKE. – Lionel ^(talk) 03:02, 30 October 2011 (UTC)

Anyone who doesn't care about definitions, doesn't care whether his sources are talking about the same thing. Anyone who doesn't care whether his abstractions refer to any actual real-world individuals doesn't care whether he is talking about anything.

If this paragraph ever returns, the replacer will face dispute resolution. Septentrionalis PMAnderson 03:25, 30 October 2011 (UTC)

I agree with JimWae and Pmanderson. In the first place, "Meaning" is surely the wrong word here. Second, the section presents a stark liberal-conservative dichotomy that is historically inept and fails to represent the source accurately. The cited page from Taking Religion Seriously makes qualified statements such as "For many religious conservatives" and "many religious liberals and secularists." In the article, this becomes "liberals believe this, conservatives believe this." The source isn't represented accurately. Cynwolfe (talk) 04:03, 30 October 2011 (UTC)

We can definitely add qualifiers to words such as "liberals" or "conservatives." I also do not oppose changing the heading to a more appropriate word such as "Perspectives" or "Politics," etc. In fact, you could make the edit doing so. The rest of the information, however, is represented by the sources. I hope this helps. With regards, Anupam^Talk 04:10, 30 October 2011 (UTC)

I have made the wording changes suggested by Cynwolfe. I also would not object to renaming that subsection. SMP0328. (talk) 04:23, 30 October 2011 (UTC)

User:SMP0328, thank you for making the changes! In the spirit of compromise, you are more than welcome to change the subheading title :) With regards, Anupam^Talk 04:25, 30 October 2011 (UTC)

Clean-up needed of "Meaning" section in article

(also discussed in parent talk section)

Reason for cleanup = Section is very incomplete examination of topic & takes sources out of context. Section on "meaning" cannot be separated from SCOTUS rulings. Grade school textbook is used as a reference twice and is not a proper source for an encyclopedia article that involves political philosophy. Sources about cases decided by the Supreme Court, and thus the law, are taken out of context & misrepresented simply as the opinions of "liberals and secularists" (When "secularists" ARE finally mentioned in the quoted source attached to usage of the word, the position is a DIFFERENT position). While some sources quoted carefully avoid saying "rulings", they do say majority, which has the same effect. Other quotes in sources presented (and many others available) do indeed refer to actual decisions/rulings of SCOTUS. Section may also require 1> removal 2>change of title

As the section stands, it is sophomoric synthesis to advance a POV rather than to seriously address "meaning". --JimWae (talk) 05:49, 30 October 2011 (UTC)

You state that "while some sources quoted carefully avoid saying "rulings", they do say majority, which has the same effect." This constitutes WP:SYNTH. Why not state what is being plainly said in the sources? I shall provide them here for you below. The reference titled Taking Religion Seriously Across the Curriculum (ASCD) states:

Government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions. This has been, and is, the liberal or 'separationist' reading of the Establishment Clause. On the other end of the spectrum, many religious liberals and secularists view any government funding of religious groups and any government expression of religion, however indirect or nonsectarian, as a violation of conscience and a stepping stone to an unholy allaince of church and state.

The reference titled Does God make a difference? (Oxford University Press) states:

I suggest that conservative justices tend to favor a weak reading of both the Free Exercise and Establishment clause, while liberals tend to favor strong readings. That is, conservative justices have been less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities. Liberals, by contrast, have been opposed to any possibility of a religious establishment and they have been relatively more concerned to protect the free exercise rights of minorities.

The reference titled Recasting Conservatism: Oakeshott, Strauss, and the Response to Postmodernism (Yale University Press) states:

Conservatives claim that liberals misinterpret the establishment and free exercise clauses of the First Amendment. The establishment clause, conservatives insist, precludes the national state from promoting any religious denomination but does not prohibit state governments and local communities from developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals.

This information from each of these academic sources corroborates one another and is even reflected in less scholarly but informative web-based sources, such as Student News Daily and Belief Net (note: these sources are not currently qualifying any statements in the article). The article simply must state what the reliable sources presents, which is being done in the current revision of the article (see WP:V). The article, in the above section, does indeed discuss the Supreme Court with the sentence: "However, it was not until the middle to late twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by the states." You are more than welcome to add referenced information to that section if this interests you. However, if you do so, keep in mind that you must present the information neutrally. For example, Taking Religion Seriously Across the Curriculum (ASCD) states: "Dissenting voices on the Court (including the current Chief Justice) take what is sometiems called an "accomodationalist" view: the Establishment Clause prohibits the government from creating a national church of favoring one religion over another, but it does not prohibit general acknowledgement of religion by government (such as allowing nonsectarian prayers at school-sponsored events) or allowing religious groups to receive government funding on the same basis as secular groups (through vouchers for religious schools, for example)." I hope this clarifies any misunderstandings you might have had. With regards, Anupam^Talk 16:26, 30 October 2011 (UTC)

Sources on Danbury

If necessary, I shall supply sources for the situation of the Danbury Baptists.Septentrionalis PMAnderson 02:58, 28 October 2011 (UTC)

On the chief substantive point at issue, it would be easy to accumulate sources which explain what was actually happening in 1802:

• Barry Adamson: Freedom of Religion, the First Amendment, and the Supreme Court The Baptists wrote Jefferson in the first place because of their concern that the Congregationalist-dominated establishment/government in Connecticut might successfully stifle dissenting sect-theirs in particular. The first text to discuss the matter in a routine search.
• Dumas Malone's six-volume biography of Jefferson: By writing about the "wall of separation", he was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth. Vol. IV, p.109.
• A history of Connecticut and religious liberty
• A history of Baptism in the United States.