Constitution of the United States/First Amend.

Constitutional Law Treatise Table of Contents

Constitutional Law Outline

Introduction

The Preamble

Article I Legislative Branch

Art. I, Section 1 Legislative Vesting Clause

Art. I, Section 2 House of Representatives

Art. I, Section 3 Senate

Art. I, Section 4 Congress

Art. I, Section 5 Proceedings

Art. I, Section 6 Rights and Disabilities

Art. I, Section 7 Legislation

Art. I, Section 8 Enumerated Powers

Art. I, Section 9 Powers Denied Congress

Art. I, Section 10 Powers Denied States

Article II Executive Branch

Art. II, Section 1 Function and Selection

Art. II, Section 2 Powers

Art. II, Section 3 Duties

Art. II, Section 4 Impeachment

Article III Judicial Branch

Art. III, Section 1 Vesting Clause

Art. III, Section 2 Justiciability

Art. III, Section 3 Treason

Article IV Relationships Between the States

Art. IV, Section 1 Full Faith and Credit Clause

Art. IV, Section 2 Interstate Comity

Art. IV, Section 3 New States and Federal Property

Art. IV, Section 4 Republican Form of Government

Article V Amending the Constitution

Article VI Supreme Law

Article VII Ratification

First Amendment: Fundamental Freedoms

Religion

Establishment Clause

Free Exercise Clause

Free Speech Clause

Freedom of Association

Second Amendment: Right to Bear Arms

Third Amendment: Quartering Soldiers

Fourth Amendment: Searches and Seizures

Fifth Amendment: Rights of Persons

Sixth Amendment: Rights in Criminal Prosecutions

Seventh Amendment: Civil Trial Rights

Eighth Amendment: Cruel and Unusual Punishment

Ninth Amendment: Unenumerated Rights

Tenth Amendment: Rights Reserved to the States and the People

Eleventh Amendment: Suits Against States

Twelfth Amendment: Election of President

Thirteenth Amendment: Abolition of Slavery

Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude

Thirteenth Amend., Section 2 Enforcement

Fourteenth Amendment: Equal Protection and Other Rights

Fourteenth Amend., Section 1 Rights

Fourteenth Amend., Section 2 Apportionment of Representation

Fourteenth Amend., Section 3 Disqualification from Holding Office

Fourteenth Amend., Section 4 Public Debt

Fourteenth Amend., Section 5 Enforcement

Fifteenth Amendment: Right of Citizens to Vote

Fifteenth Amend., Section 1 Right to Vote

Fifteenth Amend., Section 2 Enforcement

Sixteenth Amendment: Income Tax

Seventeenth Amendment: Popular Election of Senators

Eighteenth Amendment: Prohibition of Liquor

Eighteenth Amend., Section 1 Prohibition

Eighteenth Amend., Section 2 Enforcement of Prohibition

Eighteenth Amend., Section 3 Ratification Deadline

Nineteenth Amendment: Women's Suffrage

Twentieth Amendment: Presidential Term and Succession

Twentieth Amend., Section 1 Terms

Twentieth Amend., Section 2 Meetings of Congress

Twentieth Amend., Section 3 Succession

Twentieth Amend., Section 4 Congress and Presidential Succession

Twentieth Amend., Section 5 Effective Date

Twentieth Amend., Section 6 Ratification

Twenty-First Amendment: Repeal of Prohibition

Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment

Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor

Twenty-First Amend., Section 3 Ratification Deadline

Twenty-Second Amendment: Presidential Term Limits

Twenty-Second Amend., Section 1 Limit

Twenty-Second Amend., Section 2 Ratification Deadline

Twenty-Third Amendment: District of Columbia Electors

Twenty-Third Amend., Section 1 Electors

Twenty-Third Amend., Section 2 Enforcement

Twenty-Fourth Amendment: Abolition of Poll Tax

Twenty-Fourth Amend., Section 1 Poll Tax

Twenty-Fourth Amend., Section 2 Enforcement

Twenty-Fifth Amendment: Presidential Vacancy

Twenty-Fifth Amend., Section 1 Presidential Vacancy

Twenty-Fifth Amend., Section 2 Vice President Vacancy

Twenty-Fifth Amend., Section 3 Declaration by President

Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others

Twenty-Sixth Amendment: Reduction of Voting Age

Twenty-Sixth Amend., Section 1 Eighteen Years of Age

Twenty-Sixth Amend., Section 2 Enforcement

Twenty-Seventh Amendment: Congressional Compensation

First Amendment: Fundamental Freedoms

Overview[edit | edit source]

The First Amendment to the U.S. Constitution,^[1] viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws "respecting an establishment of religion"--the Establishment Clause--or "prohibiting the free exercise thereof"--the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these Clauses before explaining, in turn, the Supreme Court's interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter Clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the Clauses protecting the freedoms of assembly and petition.

Religion[edit | edit source]

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Overview of the Religion Clauses (Establishment and Free Exercise Clauses)[edit | edit source]

The first two provisions of the First Amendment, known as the Religion Clauses, state that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."^[2] The Establishment and Free Exercise Clauses were ratified as part of the Bill of Rights in 1791^[3] and apply to the states by incorporation through the Fourteenth Amendment.^[4] Together with the constitutional provision prohibiting religious tests as a qualification for office,^[5] these clauses promote individual freedom of religion and separation of church and state.

The Supreme Court has acknowledged that the Religion Clauses "are not the most precisely drawn portions of the Constitution."^[6] The Framers' goal was "to state an objective, not to write a statute."^[7] The clauses are "cast in absolute terms" and either, "if expanded to a logical extreme, would tend to clash with the other."^[8] Accordingly, the Court has said that "rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited."^[9] The breadth of the clauses has allowed debates over their proper scope since ratification.^[10] It has also led to some "internal inconsistency" in the Supreme Court's opinions interpreting these clauses,^[11] as well as interpretations that have shifted over time.

The following essays discuss the historical background of the Religion Clauses, including a discussion of colonial religious establishments and the shift in early America towards greater religious freedom.^[12] Next, essays address how both clauses prevent the government from interfering in certain religious disputes.^[13] Essays then examine, in turn, Supreme Court interpretations of the Establishment Clause^[14] and the Free Exercise Clause.^[15] Finally, two essays explore the relationship between the two Religion Clauses,^[16] as well as the relationship between the Religion Clauses and the First Amendment's Free Speech Clause.^[17]

One preliminary issue broadly relevant across Religion Clause jurisprudence is what the First Amendment means when it refers to "religion." Some early cases suggested that courts might determine what is properly considered to be "religion."^[18] In an 1890 case rejecting a Free Exercise Clause challenge to a law disenfranchising polygamists, the Court said calling the advocacy of polygamy "a tenet of religion" would "offend the common sense of mankind."^[19] Later cases, however, seemed to retreat from this suggestion as they restricted the ability of the government, including courts, to judge the legitimacy of religious beliefs.^[20] Nonetheless, the Religion Clauses extend only to sincere religious activities, and in evaluating constitutional claims, the government may investigate whether a person's beliefs are insincere and whether they are secular, stemming from political, sociological, or philosophical views rather than religious beliefs.^[21]

A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected.^[22] One 1965 case noted "the ever-broadening understanding of the modern religious community," discussing conceptions beyond even traditional theism.^[23] In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not "aid all religions as against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."^[24]

Establishment Clause[edit | edit source]

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General Principle of Government Neutrality to Religion[edit | edit source]

The First Amendment's Establishment Clause forbids the government from making any law "respecting an establishment of religion."^[25] Perhaps most obviously, this provision prevents the federal government from establishing an official national religion akin to the Church of England.^[26] But a law may "respect" an establishment even if it does not explicitly establish a religion.^[27] Thus, relying on the historical background preceding the adoption of the First Amendment, and looking particularly to the colonists' experiences with religious establishments, the Supreme Court has long understood the Establishment Clause to bar other types of government support that would tend to "establish" religion, as well.^[28] According to the Court, for the Founders, laws respecting "the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."^[29]

The Supreme Court has often referred to government neutrality towards religion as its guiding principle in applying the Establishment Clause.^[30] For example, the Court has said the state must "be a neutral in its relations with groups of religious believers and non-believers."^[31] The Court has further recognized that the government may provide some types of support without violating the Establishment Clause.^[32] While "neutrality" has remained the general touchstone, the Court has adopted a variety of approaches to determine whether any given action is sufficiently neutral.^[33]

Free Exercise Clause[edit | edit source]

Main Article

Overview of Free Exercise Clause[edit | edit source]

The First Amendment's Free Exercise Clause forbids Congress from "prohibiting the free exercise" of religion.^[34] The general framework for the Supreme Court's Free Exercise jurisprudence was largely established in the 1940 case Cantwell v. Connecticut, which also gave the Supreme Court the opportunity to apply the Free Exercise Clause to the states.^[35] In Cantwell, the Court explained that the Religion Clauses "embrace[ ] two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."^[36] Starting with the first freedom, as explored in more detail in a subsequent essay,^[37] the Free Exercise Clause "categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such."^[38]

The Court also clarified in Cantwell that religious actions, as opposed to beliefs, are "subject to regulation for the protection of society."^[39] However, the Court cautioned that the government must exercise its regulatory power cautiously so it does not "unduly . . . infringe" religious freedom.^[40] Therefore, a law that burdens but does not directly regulate religious belief is not categorically prohibited but will likely still be subject to constitutional scrutiny. Over the years, the Court has fleshed out standards to determine when regulations of religious conduct unduly infringe constitutionally protected free exercise. These standards have differed over time and circumstances, as discussed in the following essays.

The prevailing standard governing most laws was established in 1990's Employment Division v. Smith, in which the Supreme Court ruled that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"^[41] This statement echoed early, pre-Cantwell cases involving free exercise challenges to criminal laws prohibiting polygamy in U.S. territories.^[42] In these cases, the Supreme Court rejected the challenges brought by those who practiced religiously motivated polygamy, holding that the government could permissibly prohibit polygamy and the defendants' religious beliefs could not excuse them from punishment.^[43] Similarly, early cases rejected the idea that conscientious objectors had a constitutional right "to avoid bearing arms," in light of Congress's broad war powers authority.^[44] Although Smith hearkened back to these earlier cases,^[45] the opinion's lenient standard of constitutional scrutiny departed from some cases in the mid-twentieth century that had suggested the government needed a compelling interest to apply a facially neutral law in a way that burdened a person's religious activity.^[46]

Even after Smith, though, a law that imposes special burdens on religious activities may not be considered neutral or generally applicable and will likely trigger heightened scrutiny.^[47] Accordingly, one critical factor in evaluating Free Exercise Clause challenges has been whether a law discriminates against religion in its text, purpose, or effect.^[48] As one opinion cautioned, "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."^[49]

Although it has not always been an explicit part of its analysis, the Supreme Court has suggested in some decisions that a government policy does not violate the Free Exercise Clause unless it has some coercive effect towards a person's religious exercise.^[50] While recognizing that "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions," may violate the First Amendment, the Court has further clarified that "incidental effects of government programs" with "no tendency to coerce individuals into acting contrary to their religious beliefs" do not trigger heightened constitutional scrutiny.^[51] For example, the Court rejected a free exercise challenge to a program that allowed public schools to release students during the school day to take religious classes at private religious institutions.^[52] The program did not involve any free exercise issue, in the Court's view, because it did not involve coercion: no one was "forced to go to the religious classroom and no religious exercise or instruction [was] brought to the classrooms of the public schools."^[53] Accordingly, the Court has sometimes held that where a government action does not require regulated entities to act in a way that their religious beliefs prohibit, there is no Free Exercise Clause violation.^[54] Essentially, a law that does not regulate belief or burden religious exercise will not violate the Free Exercise Clause.^[55]

Relationship Between the Establishment and Free Exercise Clauses[edit | edit source]

The First Amendment's Religion Clauses prohibit the government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof."^[56] Together, the Free Exercise and Establishment Clauses guarantee religious freedom,^[57] deeming "religious beliefs and religious expression . . . too precious to be either proscribed or prescribed by the State."^[58]

In many ways, the two provisions work together to ensure government neutrality towards religion: the Establishment Clause prohibits "a fusion of governmental and religious functions" or official governmental support for "the tenets of one or of all orthodoxies," while the Free Exercise Clause protects "the right of every person to freely choose his own course" of religious observance "free of any compulsion from the state."^[59] The two clauses, however, operate in distinct ways, and "forbid two quite different kinds of governmental encroachment upon religious freedom."^[60] The Free Exercise Clause is concerned with "governmental compulsion," while the Establishment Clause is "violated by . . . laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."^[61] Viewed another way, the Free Exercise Clause protects the individual's religious beliefs, while the Establishment Clause is additionally concerned with institutional "tendencies to political tyranny and subversion of civil authority."^[62]

The Supreme Court has long recognized a "tension" between the Religion Clauses.^[63] For example, in 1947's Everson v. Board of Education, the Court rejected an Establishment Clause challenge to a state program that paid the bus fares of schoolchildren, including those who attended religious schools.^[64] While acknowledging that the Establishment Clause prevented the state from giving "tax-raised funds to the support of an institution which teaches the tenets and faith of any church," the Court also cautioned that neither could the state exclude citizens, "because of their faith, or lack of it, from receiving the benefits of public welfare legislation."^[65] The Court said it had to be "careful" that, in service of protecting "against state-established churches," it would not "inadvertently prohibit [the state] from extending . . . general . . . benefits to all its citizens without regard to their religious belief."^[66] In the words of the Court: "State power is no more to be used so as to handicap religions than it is to favor them."^[67] Accordingly, in some decisions, the Court has cautioned that the government "may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe.'"^[68]

The Court has recognized "room for play in the joints" between the proscriptions of "governmentally established religion" and "governmental interference with religion," pursuing "a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."^[69] Accordingly, the Court has recognized, as in Everson, that the government may sometimes accommodate or indirectly support religious entities or activities without violating the Establishment Clause, even when those accommodations are not required by the Free Exercise Clause.^[70] A permissible accommodation will generally relieve a burden on religious exercise, such as by exempting religious practices from a general regulation.^[71] Attempts at accommodation may go too far and violate the Establishment Clause, however, if they merely aid religious exercise rather than relieving a burden.^[72] For instance, in one case, the Court concluded that a state had violated the Establishment Clause by intentionally giving a specific religious group "exclusive control" of a school district.^[73] This "proposed accommodation single[d] out a particular religious sect for special treatment," and the Court clarified that "permissible legislative accommodations" must honor "neutrality as among religions."^[74] Notwithstanding this case's concern about preferential treatment, the Supreme Court has seemed to move more towards an accommodationist view of the Establishment Clause in recent decades.^[75]

Conversely, turning to the second aspect of the "play in the joints" described above,^[76] the government may sometimes limit its support for religion without violating the Free Exercise Clause, even when those restrictions are not required by the Establishment Clause.^[77] Stated another way, the government may sometimes take "antiestablishment" positions, such as declining to provide support to certain religious activities, without violating the Free Exercise Clause.^[78] In Locke v. Davey, the Court held that a state did not violate the Free Exercise Clause by prohibiting students from using publicly funded scholarships to pursue devotional theology degrees.^[79] Although providing such scholarships would not violate the Establishment Clause,^[80] the Court nonetheless concluded that the state could take a "more stringent" approach to "antiestablishment" than the U.S. Constitution and choose not to fund these specific religious activities.^[81] The Court characterized the state's interest in not using public funds to support church leadership as "historic and substantial," and noted that the state policy contained no evidence of "animus towards religion."^[82] In a similar vein, the Court in 1974 upheld a state's ability to exclude religious schools from school transportation programs.^[83]

Since deciding Locke, however, the Court has seemingly narrowed the "play in the joints"^[84] on this issue, rejecting states' interests in "preventing establishment" in other cases presenting different factual circumstances.^[85] The Court has suggested that in some cases, failing to accommodate religious activity would demonstrate impermissible hostility to religion.^[86] Further, more recent decisions have ruled that states violated the Free Exercise Clause by excluding religious organizations from generally available benefits programs. First, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a state acted unconstitutionally when it excluded religious organizations from receiving grants to purchase rubber playground surfaces.^[87] The Court explained that because the program barred religious organizations based solely on their religious character, this religious penalty was subject "to the 'most rigorous' scrutiny" and could be justified only by "a state interest 'of the highest order.'"^[88] In the Court's view, the state's interest in "skating as far as possible from religious establishment concerns" was insufficiently "compelling" in light of the policy's "clear infringement on free exercise."^[89] The Court distinguished Locke by saying the state in Locke had permissibly chosen to deny a scholarship because of what the recipient "proposed to do--use the funds to prepare for the ministry."^[90] By contrast, in Trinity Lutheran, the Supreme Court held that the state was impermissibly denying funds because of what the recipient "was"--a church.^[91] A plurality of the Court further clarified that the Trinity Lutheran decision did "not address religious uses of funding or other forms of discrimination."^[92]

The Court built on Trinity Lutheran's nondiscrimination principle in Espinoza v. Montana Department of Revenue, ruling that a state could not bar religious schools from participating in a tax credit program benefiting private school students.^[93] The state supreme court had concluded that the program, which originally included religious schools, violated a state constitutional provision that prohibited the government from providing direct or indirect financial support to religious schools.^[94] The U.S. Supreme Court rejected the state's argument that it had barred religious schools from the program based on how they would use the funds--for religious education--and held instead that the text of the state constitution barred religious schools from public benefits solely because of their religious character.^[95] Again distinguishing Locke, the Court emphasized that the state had not merely excluded any "particular 'essentially religious' course of instruction," but barred all aid to religious schools.^[96] Further, unlike the "'historic and substantial' state interest in not funding the training of clergy" at issue in Locke, there was no similar historically grounded interest in disqualifying religious schools from public aid more generally.^[97] Accordingly, following the analysis in Trinity Lutheran, the Court ruled that the exclusion based on religious status was unconstitutional under a strict scrutiny standard.^[98]

In Carson v. Makin, the Court squarely rejected the idea that states could exclude religious schools from an indirect aid program based on religious uses of the funds, further narrowing the play in the joints.^[99] A state program allowed parents to use tuition assistance funds at public schools or "approved" private schools, which had to be "nonsectarian."^[100] Maine raised two claims to try to avoid Trinity Lutheran.^[101] First, the state argued its program was designed to provide a public education, which inherently entailed a secular education.^[102] The Court rejected this claim, saying the state could not recast a discriminatory exclusion as a permissible funding condition.^[103] Second, seizing on the possible distinction in Trinity Lutheran between religious status and religious use, the state said it excluded sectarian schools based on concerns about public funds being used for religious activities.^[104] In contrast to Espinoza, the Court in Carson accepted that the state was excluding the schools based on their religious use of funds, rather than merely their religious identity.^[105] Nonetheless, the Court held that "use-based discrimination" is just as "offensive to the Free Exercise Clause,"^[106] at least in the context of a "neutral" indirect benefit program that did not violate the Establishment Clause.^[107] Accordingly, as in Trinity Lutheran and Espinoza, the Court ruled the exclusion unconstitutional under a strict scrutiny analysis.^[108] Further, while Trinity Lutheran had distinguished Locke in part by emphasizing that the theology-degree exclusion was based on the recipient's use of the funds, the Carson opinion distinguished Locke by characterizing the case as having a "narrow focus on vocational religious degrees."^[109]

Relationship Between Religion Clauses and Free Speech Clause[edit | edit source]

The Supreme Court has described the First Amendment as protecting certain rights of conscience.^[110] This general description can encompass the related protections for both speech and religion: "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority."^[111]

Supreme Court cases recognizing protections for religious speech have explored the precise relationship between the Free Speech and Free Exercise Clauses. The Court has recognized that each Clause protects private religious speech on its own,^[112] but in some cases, has invoked both Clauses to outline protections for religious speech.^[113] The two Clauses "work in tandem": "[w]here the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities."^[114] For example, in Jamison v. Texas, the Court held that a city ordinance prohibiting the distribution of handbills violated both the Free Exercise and the Free Speech Clauses when it was applied to a person who was advertising religious services and materials.^[115] The Court emphasized constitutional protections for expressing one's views on public streets as well as protections for "a clearly religious activity."^[116] In a similar vein, some early cases interpreting free exercise protections seemed to consider certain free speech concepts such as the public forum doctrine.^[117]

In a later case, though, the Supreme Court emphasized that the First Amendment nonetheless "protects speech and religion by quite different mechanisms," pointing in part to the Establishment Clause.^[118] Namely, the Free Speech Clause contemplates that the government will participate in public discussions, as part of the "full expression" of speech.^[119] By contrast, while the Free Exercise Clause's "freedom of conscience and worship . . . has close parallels in the speech provisions of the First Amendment, . . . the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs."^[120] However, the Court has since cautioned against a reading of the Clauses that creates tension or allows the Establishment Clause to "trump the other two."^[121] The Court has ruled that schools may not violate a party's free exercise or free speech rights based on "phantom constitutional violations" stemming from "misconstruction[s] of the Establishment Clause."^[122]

A number of Supreme Court cases have considered whether the government violated the Establishment Clause by impermissibly supporting or endorsing private religious speech.^[123] For instance, in Widmar v. Vincent, a university prevented a student group from using its buildings for religious worship, citing Establishment Clause concerns.^[124] The Court recognized that although the group's private religious speech was protected by the Free Speech Clause, the government's obligation to comply with the Establishment Clause could provide a compelling interest allowing the university to restrict that speech--if allowing the group to use its facilities would constitute impermissible support.^[125] However, in Widmar and a number of other cases, the Court held that schools do not violate the Establishment Clause merely by hosting religious speech, where the speech can be attributed to private parties rather than the government.^[126]

To determine whether speech should be considered private, the Court has looked to factors such as whether a forum is generally available to a variety of participants, both religious and nonreligious, as well as the amount of control the government exercised over the speech.^[127] In one case, the Supreme Court held that a state impermissibly denied a private group permission to display a cross in a public park, concluding that the cross "was private expression . . . . fully protected under the Free Speech Clause."^[128] The fact that the "purely private religious speech" was "connected to the State only through its occurrence in a public forum"--a park where the state had previously hosted a variety of other speech--meant that the government did not violate the Establishment Clause by hosting the display.^[129]

More broadly, the Supreme Court has rejected Establishment Clause challenges where schools "grant[ed] access to . . . facilities on a religion-neutral basis to a wide spectrum of student groups," including religious groups.^[130] The Court stated this principle directly in Board of Education v. Mergens, in which a federal law prohibited public secondary schools from denying students access to forums based on the content of their speech.^[131] The Court upheld that law, holding that requiring schools to host religious speech did not violate the Establishment Clause.^[132] Among other factors, the Court highlighted that the law required schools to host a wide variety of speech "on a nondiscriminatory basis," and that the specific school raising this constitutional claim had in fact recognized a "broad spectrum" of student clubs, "counteract[ing] any possible message of official endorsement of or preference for religion or a particular religious belief."^[133]

By contrast, in Santa Fe Independent School District v. Doe, the Court held that student-led prayers held prior to public school football games could not "be regarded as 'private speech.'"^[134] The Court emphasized that not only did the invocations "take place on government property at government-sponsored school-related events," but the government also helped to select the speaker, "invite[d] and encourage[d] religious messages," and otherwise appeared to support the speech.^[135] In addition, the Court noted that the school allowed "only one student, the same student for the entire season, to give the invocation," which was "subject to particular regulations that confine the content and topic of the student's message."^[136] Consequently, the school practice violated the Establishment Clause.^[137]

Thus, while the Free Speech and the Free Exercise Clauses serve similar goals of preventing government infringement of individual freedom of thought, their protections are not necessarily coextensive.^[138] Further, while Establishment Clause concerns could theoretically justify restrictions on private religious speech, the Court has largely held that the government only violates the Establishment Clause if it goes beyond merely hosting private religious speech to give special support to religious activity. Cases reading the Establishment Clause to have a more limited scope could further contract the government's ability to restrict religious speech by employees or on public property.^[139] For example, in Kennedy v. Bremerton School District, the Supreme Court ruled that a school violated the Free Exercise and Free Speech Clauses when it punished a football coach for praying on the football field after games.^[140] The Court refused to consider concerns about government endorsement of prayer, and in considering the applicability of Santa Fe, looked only to aspects of that decision that it believed went to government coercion.^[141] Ultimately, the Court concluded there was no coercion in the coach's prayer practice, as discussed in more detail in another essay.^[142]

Free Speech Clause[edit | edit source]

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Historical Background on Free Speech Clause[edit | edit source]

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment. James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison's draft provided: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."^[143] The House of Representatives special committee rewrote Madison's language to make the speech and press clauses read: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed."^[144] The Senate subsequently rewrote the speech and press clauses to read: "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances."^[145] Later, the Senate combined the religion clauses and the speech and press clauses^[146] and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate.^[147] During debate over the clauses, Madison warned against the dangers that would arise "from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty."^[148] The general statement of these "simple" principles, however, gave rise to controversy when applied to specific government actions.^[149]

The Sedition Act of 1798 sparked one such controversy that "crystallized a national awareness of the central meaning of the First Amendment."^[150] The law punished anyone who would "write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute."^[151] While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.^[152] Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized "a broad consensus" from the political and judicial branches that the act was unconstitutional.^[153]

Freedom of Association[edit | edit source]

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Overview of Freedom of Association[edit | edit source]

The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment's text does not expressly identify a "freedom of association,"^[154] the Supreme Court has recognized this right as "an indispensable means of preserving" other First Amendment freedoms.^[155] Specifically, the Court "has recognized a right to associate for the purpose of engaging" in "speech, assembly, petition for the redress of grievances, and the exercise of religion."^[156]

This right of "expressive association" is the focus of this set of essays.^[157] The Court has also recognized a "personal liberty" interest in "certain intimate human relationships," protected not only by the First Amendment, but also by the Due Process Clause of the Fourteenth Amendment.^[158] This concept of "intimate association" is discussed at the end of this section and in the essays on substantive due process.^[159]

The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments "have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies" formed to petition the government.^[160] It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association.^[161] In 1937, the Court held that the "right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."^[162] The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union "is protected not only as part of free speech, but as part of free assembly."^[163]

Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment.^[164] By 1958, the Court considered it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties such as the freedom of speech.^[165] Although political association is a classic example of expressive association,^[166] the First Amendment also protects "forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members."^[167]

Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati, the Court held that a local ordinance violated the freedoms of association and assembly on its face.^[168] The challenged ordinance made it a crime for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by."^[169] According to the Court, this ordinance was "aimed directly at activity protected by the Constitution"--the freedoms of association and assembly.^[170]

More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one's associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals.^[171] Accordingly, First Amendment protections "are triggered not only by actual restrictions on an individual's ability to join with others to further shared goals," but also by laws or regulations that may have a "chilling effect on association."^[172]

The Court's decisions in this area, though not always reconcilable, reflect a balancing of First Amendment rights and governmental interests as well as the major political and social events of the era. For example, in the 1950s and 1960s, the Court adjudicated many cases in which the government asked U.S. citizens to reveal or disavow their actual or perceived affiliations with the Communist Party.^[173] The Court largely credited concerns that states and the federal government expressed at that time about the security threat that Communism posed to the United States,^[174] even while applying increasing First Amendment scrutiny to laws that burdened the association of other groups.^[175] Describing its own decisions in 1963, the Court explained, "the Communist Party is not an ordinary or legitimate political party[,]" and thus, Party membership "is a permissible subject of regulation and legislative scrutiny."^[176] While the Court later abandoned some of its presumptions about the dangers of bare association, the Court's care with respect to issues of national security remained evident in later cases, such as a 2010 decision upholding a ban on domestic support of designated foreign terrorist organizations.^[177]

Although many of the leading Supreme Court decisions on the freedom of association concerned burdens on association, the Court has also held that "compelled association" can violate the First Amendment.^[178] For example, in some circumstances, laws requiring organizations to include persons with whom they disagree on political, religious, or ideological matters can violate members' freedom of association, particularly if those laws interfere with an organization's message.^[179]

As with other individual rights protected by the Constitution, the freedom of association is not absolute.^[180] First, the government may prohibit "agreements to engage in illegal conduct," even though such agreements "undoubtedly possess some element of association."^[181] Second, forms of association that are neither "intimate" nor "expressive" within the meaning of First Amendment case law may not receive constitutional protection.^[182] Third, as noted above, even when a law implicates protected association, the government's interests may outweigh the burdens on association in some circumstances.^[183] Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group's concerns.^[184]

Freedom of the Press[edit | edit source]

Overview of Freedom of the Press[edit | edit source]

Some have raised the question of whether the Free Speech Clause and the Free Press Clause are coextensive, with respect to protections for the media. A number of Supreme Court decisions considering the regulation of media outlets analyzed the relevant constitutional protections without significantly differentiating between the two clauses.^[185] In one 1978 ruling, the Court expressly considered whether the "institutional press" is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Potter Stewart argued in a concurring opinion: "That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively."^[186] But, in a plurality opinion, Chief Justice Warren Burger wrote: "The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others."^[187] The plurality ultimately concluded that the First Amendment did not grant media the privilege of special access to prisons.^[188]

Several Supreme Court holdings firmly point to the conclusion that the Free Press Clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.^[189] Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.^[190] The Court has ruled that "[g]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects."^[191] At the same time, the Court has recognized that laws targeting the press, or treating different subsets of media outlets differently, may sometimes violate the First Amendment.^[192] Further, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to heightened constitutional protections--that its role constitutionally entitles it to governmental "sensitivity," to use Justice Potter Stewart's word.^[193]

Protection of Confidential Sources[edit | edit source]

News organizations have claimed that the First Amendment compels a reporter's privilege: an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.^[194] The Court rejected the argument for a limited exemption permitting reporters to conceal their sources from a grand jury and to keep confidential certain information they obtain and choose at least for the moment not to publish in Branzburg v. Hayes.^[195] Emphasizing the importance of the grand jury in creating a "[f]air and effective law enforcement [system] aimed at providing security for the person and property of the individual," the Court concluded the public interest "in ensuring effective grand jury proceedings" overrode "the consequential, but uncertain, burden on news gathering" that would result from requiring reporters to respond to relevant grand jury questions.^[196] Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice Byron White for the Court, but the conditional nature of the alleged reporter's privilege might not mitigate the deterrent effect, eventually leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.^[197]

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.^[198] As for federal courts, Federal Rule of Evidence 501 provides that the common law generally governs a claim of privilege.^[199] The federal courts have not resolved whether the common law provides a journalists' privilege.^[200]

Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation, the Court held in Zurcher v. Stanford Daily.^[201] The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur. It observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.^[202]

Access to Government Places and Papers[edit | edit source]

Conflict between constitutional rights is not uncommon. One difficult conflict to resolve is the conflict between a criminal defendant's Fifth and Sixth Amendment rights to a fair trial and the First Amendment's protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity^[203] and during trials that were media spectaculars^[204] have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of gag orders preventing press publication of information directly confronts the First Amendment's bar on prior restraints,^[205] although the courts have a good deal more discretion in preventing the information from becoming public in the first place.^[206]

When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings,^[207] the decision raised questions concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend the trials themselves.^[208] In a split ruling in Richmond Newspapers v. Virginia, the Court held that the First Amendment protected the right of access to criminal trials against the wishes of the defendant.^[209]

Chief Justice Warren Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices.^[210] The Chief Justice emphasized the history showing that trials were traditionally open. This openness, moreover, was no "quirk of history" but "an indispensable attribute of an Anglo-American trial."^[211] He explained that this characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the "therapeutic value" to the public of seeing its criminal laws in operation, purging the society of the outrage felt at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained.^[212] Thus, the opinion concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice."^[213] Ultimately, the plurality ruled that "in the context of trials . . . the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted."^[214]

Justice William Brennan, joined by Justice Thurgood Marshall, followed a different route to the same conclusion. He argued that rather than solely protecting individual communications, "the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government."^[215] He argued that in order to secure robust public debate and "other civic behavior," the First Amendment must also ensure that debate is "informed," protecting not only "communication itself but also . . . the indispensable conditions of meaningful communication."^[216]

Two years later, the Supreme Court articulated a standard for determining when the government's or the defendant's interests could outweigh the public right of access. Globe Newspaper Co. v. Superior Court^[217] involved a statute, unique to one state, that mandated the exclusion of the public and the press from trials during the testimony of a sex-crime victim under the age of 18. For the Court, Justice William Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness^[218] and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right recognized by the Court was not absolute; instead, in order to close all or part of a trial government must show that "the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest."^[219] The Court was explicit that the right of access was to criminal trials,^[220] leaving open the question of the openness of civil trials.

The Court next applied and extended the right of access in several other areas of criminal proceedings, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I^[221] that historically voir dire had been open to the public, and that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."^[222] No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, forty-one of the forty-four days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, for example, in camera consideration of jurors' requests for protection from publicity. In Waller v. Georgia,^[223] the Court held that "under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,"^[224] and noted that the need for openness at suppression hearings "may be particularly strong" because the conduct of police and prosecutor is often at issue.^[225] And, in Press Enterprise II,^[226] the Court held that there is a similar First Amendment right of the public to access most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused's Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be "specific findings . . . demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights."^[227] Openness of preliminary hearings was deemed important because, under California law, the hearings can be "the final and most important step in the criminal proceeding" and therefore may be "the sole occasion for public observation of the criminal justice system," and also because the safeguard of a jury is unavailable at preliminary hearings.^[228]

Freedoms of Assembly and Petition[edit | edit source]

Historical Background on Freedoms of Assembly and Petition[edit | edit source]

The right of petition took its rise from the modest provision made for it in chapter 61 of the Magna Carta (1215).^[229] To this meager beginning are traceable, in some measure, Parliament itself and its procedures for the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by "petition of right." Thus, while the King summoned Parliament for the purpose of supply, the latter--but especially the House of Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as the House of Commons increased in importance, it came to claim the right to dictate the form of the King's reply, until, in 1414, the House of Commons declared itself to be "as well assenters as petitioners." Two hundred and fifty years later, in 1669, the House of Commons further resolved that every commoner in England possessed "the inherent right to prepare and present petitions" to it "in case of grievance," and of the House of Commons "to receive the same" and to judge whether they were "fit" to be received. Finally chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and "all commitments and prosecutions for such petitioning to be illegal."^[230]

The Supreme Court has asserted a similarly historical basis for the right of peaceable assembly for lawful purposes, saying "it is, and always has been, one of the attributes of citizenship under a free government."^[231] One commentator has noted that the Court originally conceived the rights of petition and assembly as components of a single right but that the Court later treated the right of assembly as protecting a distinct interest in "the holding of meetings for peaceable political action."^[232]

The right of petition recognized by the First Amendment first came into prominence in the early 1830s, when petitions against slavery in the District of Columbia began flowing into Congress in a constantly increasing stream, which reached its climax in the winter of 1835. Finally on January 28, 1840, the House adopted as a standing rule: "That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever." Because of efforts of John Quincy Adams, this rule was repealed five years later.^[233] For many years the rules of the House of Representatives have provided that Members having petitions to present may deliver them to the Clerk and the petitions, except such as in the judgment of the Speaker are of an obscene or insulting character, shall be entered on the Journal.^[234] Even so, petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in World War I, in imprisonment.^[235] Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the Capitol. The march of the veterans on Washington in 1932 demanding bonus legislation was defended as an exercise of the right of petition. The Administration, however, regarded it as a threat against the Constitution and called out the army to expel the bonus marchers and burn their camps. Marches and encampments have become more common since, but the results have been mixed.

Doctrine on Freedoms of Assembly and Petition[edit | edit source]

The right of assembly was first before the Supreme Court in 1876^[236] in United States v. Cruikshank.^[237] The Enforcement Act of 1870^[238] forbade conspiring or going onto the highways or onto the premises of another to intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States. Defendants had been indicted under this Act on charges of having deprived certain citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." Although the Court held the indictment inadequate because it did not allege that the attempted assembly was for a purpose related to the Federal Government, its dicta broadly declared the outlines of the right of assembly:

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.United States v. Cruikshank, 92 U.S. 542, 552-53 (1876). See also Presser v. Illinois, 116 U.S. 252, 267 (1886) (describing Cruikshank as holding "that the right peaceably to assemble was not protected by the [First Amendment] . . . , unless the purpose of the assembly was to petition the government for a redress of grievances").

Absorption of the Assembly and Petition Clauses into the liberty protected by the Due Process Clause of the Fourteenth Amendment means that the Cruikshank limitation is no longer applicable.^[239] Today the right of peaceable assembly is, in the language of the Court, "cognate to those of free speech and free press and is equally fundamental."^[240] Broadly, the Court has said that the government may not proscribe "peaceable assembly for lawful discussion," and even though participants may "have committed crimes elsewhere, . . . . mere participation in a peaceable assembly and a lawful public discussion" may not provide "the basis for a criminal charge" absent evidence that their speech "transcend[ed] the bounds of the freedom of speech which the Constitution protects."^[241]

Illustrative of this expansion is Hague v. CIO,^[242] in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance that vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts, in an opinion that Justice Hugo Black joined and with which Chief Justice Charles Hughes concurred, described the right of assembly as one that "is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."^[243] In Coates v. Cincinnati, the Court described the right of assembly as protecting "the right of the people to gather in public places for social or political purposes," and struck down an ordinance prohibiting "annoying" assemblies as containing "an obvious invitation to discriminatory enforcement."^[244]

Furthermore, the right of petition has also expanded beyond what might be implied by the language of "a redress of grievances." For example, the Supreme Court has recognized that the clause protects a right of access to the courts, beyond just a right to petition the legislature.^[245] The clause also goes beyond a narrow idea of "grievances" and comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.^[246] The right extends to all departments of the government, including the "approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government."^[247]

Later cases recognize overlap between the rights of assembly and petition and the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression.^[248] While certain conduct may still be denominated as either petition^[249] or assembly^[250] rather than speech, similar standards will likely be applied in most cases.^[251] For instance, as discussed in an earlier essay, where a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.^[252] In Borough of Duryea, Pennsylvania v. Guarnieri,^[253] the Court similarly held that a police chief who alleged retaliation for having filed a union grievance challenging his termination was not protected by the right to petition, because his complaints did not go to matters of public concern.^[254] Further, the right of assembly has largely been superseded by the Court's recognition of an right of an implied right of association.^[255]