First Amendment to the United States Constitution

The First Amendment to the United States Constitution is a part of the United States Bill of Rights. Textually, it prevents the U.S. Congress from infringing on six rights. It forbids laws that:

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 that would abridge the freedom of the speech or 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":

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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. . . .

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This phenomenon has been discussed in several books, most notably Edward Corwin?s The Constitution And What It Means Today (Princeton). But it is not only academics who have recognized the phenomenon. The Supreme Court has itself formally acknowledged the extent to which it has revised/amended the Constitution by construction. In 1969, Judges Black and Douglas stated in their concurrence in Baldwin v. New York, 399 U.S. 66 (1969) that

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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.

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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), http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/u20031.html, 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 . . .".

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

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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.

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Text of the Virtual First Amendment (heavily abridged)

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: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)

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This phenomenon is discussed extensively in the online book, Would The Real First Amendment Please Stand Up?

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