International Law
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This article is written by Kushang, a student from Himachal Pradesh National Law University (HPNLU). This article talks about the First Amendment crisis faced by the USA. It states various issues faced by the citizens and the landmark judgments related to the First Amendment of the Bill of Rights.

Introduction

‘People Rights in World’s first democracy are under threat.’ A common phrase that one might come across while reading about current development taking place in the United States of America. The widespread protests across the USA have led to various crises. One among them is related to the First Amendment Crisis. This relates to certain basic rights of the citizens of America. Every human has certain rights that need to be protected by the constitution. These rights form the very basic structure of the country’s development and prosperity. Think of the situation where we don’t have the freedom to express ourselves, no freedom to follow a religion, and no freedom to protest and put our grievances in front of the authorities. No citizen would like to live in such a situation. Thus, the time has come where we need to talk about the issues that certain basic rights of people are facing. In this context, it is important to know about the First Amendment and America.

What is the First Amendment

The First Amendment is one of the most important amendments to the protection of democracy in the United States of America. It mentions that no law respecting an establishment of religion or prohibiting its free exercise should be made. It also prohibits any law restricting freedom of speech, or the press, or the right to peaceful assembly. Also, no law should be made to abridge the petition to the government for solving the grievances.

Thus, the first amendment gives basic rights to people which include freedom of religion, speech, press, assembly, and the right to petition the government. The First Amendment was adopted in 1791 as one of the ten amendments that constitute the Bill of rights.

If we compare the importance of the first amendment to the Indian context, it has the same significance as the fundamental rights given to Indian citizens under the constitution of India.

Background

In 1787, politicians like James Madison and Alexander Hamilton came together to draft the constitution of the USA. The opposition led by Patrick Henry opposed the ratification of the courts. It was opposed on the grounds that the constitution gave immense power to the federal government at the cost of states. It was also opposed on the grounds that the constitution lacked the protection of Individuals rights.

Thus, this led to debate and federalists agreed and promised to draft the Bill of Rights. James Madison drafted the bill during the 1st United States Congress, which met from 1789-91. This Bill of Rights consisted of ten amendments to the U.S. constitution.

First Amendment crisis

Lately, we have heard about various problems that have arisen in the United States of America. These issues have been mostly related to the First Amendment of the Bill of Rights.

There have been various debates regarding freedom of religion, freedom of the press, and freedom of peaceful assembly. These issues have led to the First amendment crisis in the USA. Thus, it is important to know what has affected the country so much that it is facing such a crisis.

Issues related to Freedom of Religion

The first amendment guarantees this right to religion to its citizens and prohibits the government from establishing any state religion or having a bias towards any religion. But in recent times, various issues have been experienced. For instance, The New York Police Department (NYPD) has a ‘no beard’ policy. However, conflict arose when a police officer refused to shave off his beard for a fasting month due to religious reasons. He was suspended. The NYPD justified their action by stating that beards can be dangerous to the officers during a physical confrontation and also that there are guidelines for gas masks that prevent officers from having long beards. This was one of the religious crises faced by the people. Apart from this, there are various issues that relate to the religion of the people in the US and are in direct conflict with the First Amendment of the Bill of Rights. For instance, issues faced due to coronavirus where people are not allowed to go to churches. However, this issue is debatable whether it infringes on the right to religion of the citizen or not. 

Efforts to repress the freedom of religion can be a direct attack on the First Amendment and can affect the very base of the American citizens.

Issues Related to Freedom of Speech and Press

Freedom of speech gives Americans the right to express themselves without interference from the government. There have been debates about what speech is protected under this freedom. For instance, obscene and provoking speech that can harm others or even incitement or threats is not protected. Freedom of the press is similar to freedom of speech to express themselves through various modes. However, they also face certain limitations like  false or defamatory statements that are not protected under this freedom.

But recently the issue of ‘Hate speech’ has been seen in the American environment. Hate speech incidents are arising in the country. The protests relating to the “Black Lives Matter” or the “Me too” movement have generated various reactions from people. Sometimes, these reactions become so extreme that it can lead to hate speech. The issue is that such hate speeches are not prohibited.

The media and Press are also facing various issues that are affecting their freedom. The threat is not from the government. The problem is that constant attacks on the veracity of the press can hurt the credibility and also make the reporters hostile. The main objective of this freedom was to provide the right to freely express themselves. However, with people questioning the credibility of these presses, the main objective may not be fulfilled.

Issues Related to Right to Assemble

The First Amendment protects the freedom to peacefully assemble, gather, or associate with a group of people. It also includes the right to protest against the government. However, this right is not absolute. The recent incidents of Protests of people in the Black Lives Matter have again brought the issue of peaceful assembly in the forefront. On June 1, 2020, the peaceful protest of people was swept off by force from the authorities. This happened in Lafayette Square in Washington D.C. The protester claimed that they were assaulted.

The scenario has changed regarding the protests in America. For instance, a Court of appeal in America approved an opinion holding that anyone who organizes a protest can be sued – and thus probably bankrupted- if someone in the protest commits an illegal act. In 2016, A UN human rights expert Maina Kiai submitted a report stating that the US was violating the Right to Peaceful Assembly. It stated that there exists differential behavior of the police towards assemblies organized by African-Americans. Their protests are treated in a much harsher manner. Such incidents of protests are on the rise in the country but forcefully stopping a peaceful protest speaks a lot about the first amendment crisis which has the right to assemble as one of its essential elements. 

Issues related to Right to Petition

This right empowers the citizen to sign a petition or even fill a lawsuit against the government. This helps to keep a check on the government and also redress their grievances against the government.

Lately, there have not been many issues regarding this right given to the American citizen by the First Amendment. The first case involving this right within the U.S was to raise voice against slavery and to put an end to it. 

Thus, these were the issues that are being faced by important rights given to the citizens of America. These rights have been debated and developed over the years. Now, various issues arising in almost all the important elements of the First amendment is causing a First Amendment crisis in the USA.

Landmark cases related to First Amendment

The rights conferred under the first amendment have been through various discussions and debates over the years. The idea behind such rights have developed and have become more clear to the citizens, thanks to the role played by the courts in various cases. Some of the landmark cases are mentioned below- 

  • In Schenck v. The United States, 1919, a socialist party activist C Schenck distributed fliers urging young men to dodge the draft during World War 1. The Supreme Court upheld the conviction. The court viewed the act of draft resistance as a threat to national security. This decision helped in the interpretation of freedom of speech. Here it accepted the ‘clear and present danger’ standard to assist the government as to when the speech can be limited. 
  • In New York Times Co. v. The United States, 1971, the dispute between the government and The New York Times was settled. The conflict was due to the publishing of the contents of the Pentagon paper in the newspaper. The Pentagon paper was a top secret of the US defense department and was about the US involvement in Vietnam from 1945-67. The paper revealed that the American leaders had misled people about their involvement. The Supreme Court allowed the publication.
  • In Reynolds v. United States (1878), The court upheld the decision of the government to ban polygamy. This was related to the freedom of religion aspect of the first amendment. The court ruled that freedom of religion forbids the government from regulating belief but not from actions such as marriage.
  • Similarly in Braunfeld v. Brown (1961), the court agreed to the Pennsylvania law that stores should be closed on Sundays even though orthodox jews cited unfairness due to law as religion required them to close shop on Saturday as well.
  • In Sherbert v. Verner (1963), a textile worker Adell Sherbert was fired when she refused to work for  6-day a week. She refused to work on Saturdays due to religious reasons. In this case, the Supreme Court held that states could not require a person to abandon their religious beliefs in order to receive benefits.
  • In Lemon v. Kurtzman (1971), The supreme court established the ‘Lemon Test’ for determining any violation of the Establishment clause by the state or federal law. In the case, a Pennsylvania law allowed the state to reimburse catholic schools for the salaries of teachers who taught there. However, this was seen as a support by the government for a particular religion which is prohibited under the First Amendment and thus, the Supreme Court struck down this law and established the “Lemon Test”.
  •  In Edwards v. South Carolina (1962), 187 black students marched from Zion Church to South Carolina State House, where they were stopped and taken into custody. They were convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the conviction, arguing that the state infringed on the free speech, free assembly, and freedom to petition against the government by the students.
  • Another famous case related to the Ten commandments made news in 2005. The Supreme Court came up with two contradictory decisions in two cases involving the display of ten commandments in public on public property. In one of the cases Van Orden v. Perry, the Supreme Court held that the display of a 6 foot ten commandments monument at the Texas State Capital was constitutional. But in McCreary County v. ACLU, the U.S. The Supreme Court ruled that 2 large framed copies of the Ten Commandments in Kentucky court violated the First Amendment.

                    

Conclusion

America has faced many debates over its First Amendment which provides basic rights of freedom to speech, freedom to religion, freedom to petition, and freedom to assemble peacefully. The present situation has created more controversies regarding the First Amendment. This crisis has to be dealt with in an effective manner where the rights of the citizens are not compromised by the authorities. These rights are very basic to any human being. A country whose famous leader stated that democracy is by the people, of the people and for the people clearly shows the importance given to the citizen in a democracy. Thus, a country like the United States of America has to interpret the situation and come up with the best solution for its citizens.

References

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