First Amendment

The First Amendment is the first of the original ten amendments that constitute the Bill of Rights in the United States Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791. The First Amendment protects a number of fundamental rights for Americans — freedom of religion, speech, press, assembly and petition. Freedom of religion is enshrined by the First Amendment clause that prohibits the government from establishing a religion, and allows people the free practice of religion. The First Amendment also grants the basic rights to freedom of speech and of the press that are vital for a functioning democracy. It also protects the rights of people to assemble peacefully, and to petition the Government for redressal of grievances.

The five freedoms that are guaranteed by the First Amendment are often referred to collectively as “freedom of expression.” From the 20^th century onward, many individuals and entities have legally challenged the government when they believed their rights were under attack. In response to these legal challenges, courts ranging from the U.S. Supreme Court to federal Courts of Appeals, district and state courts, have issued judgments in landmark First Amendment cases.

Many of these cases deal with freedom of speech, which is often viewed as the foundation on which the other First Amendment freedoms are based. The Schenck v. United States case of 1919 was a landmark one in this context. Charles Schenck was an anti-war activist during World War I who was arrested for sending leaflets to new armed forces recruits and enlisted men that urged them to ignore their draft notices. The Supreme Court affirmed the defendant’s conviction on the grounds that Schenck was a threat to national security through his attempt to interfere with recruitment and incite insubordination in the armed forces. In his ruling, Justice Oliver Wendell Holmes defined a “clear and present danger test” to determine whether speech is protected by the First Amendment in such cases. This established the principle that an individual who is a “clear and present” danger to U.S. security would not have the right to free speech.

In the business context as well, the right to free speech often causes the greatest controversy. In the workplace, it gives rise to questions such as – can an employee be fired for participating in a political rally? Or for speaking to the press about work conditions? Can one be terminated for a non-work-related post on social media?

A case involving search-giant Google Inc. in August 2017 provides a good example. A Google employee posted a 10-page memo to an internal company forum that argued women were under-represented in the tech industry because of “biological causes” between men and women, and criticized the company for its diversity and inclusion initiatives. The memo was subsequently leaked to the media, setting off a firestorm of outrage and a heated debate about the limits of free speech in the workplace. The employee was fired shortly thereafter, because the memo violated Google’s code of conduct and crossed the line “by advancing harmful gender stereotypes,” according to Google’s CEO.