Jordan Bizzell

JOMC 393
Mid-Term
October 8, 2020

Abstract

Understanding the significance of the First Amendment is essential in helping define and

describe democracy. Though the most widely recognized, the protection of one’s First

Amendment rights is often neglected in court cases and law suits. As a result, it is within reason

to question how effective The First Amendment is in terms of protecting the right to freedom of

press, speech, peaceful assembly, petition of the government, and religion. This paper explores

several court cases that, arguably, failed to fully consider The First Amendment before a final

ruling was agreed upon.

The First Amendment is arguably the most important amendment listed in the Constitution, as

it allows U.S citizens the freedom to express themselves through various mediums without fear

of retaliation or consequence. We see the human need for expression manifest itself in many

different forms whether it be news articles in the press, peaceful assembly, or one’s religious

preference. For this reason, the significance of The First Amendment is ever so clear.

Throughout the course of history, we see the strength of The First Amendment challenged and

tested in numerous law suits and court cases. Controversial application of The First Amendment

and its frequent failure to protect human expression raises the question: How effective is the

First Amendment in protecting freedom of press, speech, religion, peaceful assembly, and

petition of the government? The following paragraphs take a look at several court cases in

which the application of The First Amendment as it relates to the end ruling is debatable.

The first case to analyze and discuss is the case of The United States v O’Brien. In short, during

the peak of the Vietnam War in 1968, David O’Brien burned his draft card at a local courthouse

to express his disapproval of the war. O’Brien’s actions were viewed and described in law as

symbolic speech, and though not plainly stated symbolic speech is said to be protected under

The First Amendment. Symbolic speech can be defined as action that is intentional in conveying

a specific message. The court ruled against O’Brien for his destruction of the draft card under

the law that described destruction of draft cards as a crime. Chief Justice Earl Warren later

created a set of guidelines known as the “O’Brien Test” to help court officials ethically

determine instances in which regulation of symbolic speech is justifiable. He believed that the

regulation of speech was justified if it is within the government’s power to do so or when said

acts do not serve governmental interest. While the O’Brien Test is not used as the deciding
premise in all cases involving nonverbal expression, it speaks greatly to the government’s ability

to disregard The First Amendment in court when inclined. Unlawful infringement of O’Brien’s

freedom of speech can be argued for the clear fact that The First Amendment is supposed to

defend one’s right to freely express themselves. In this case, it is even more challenging to

argue its strength since O’Brien was not inciting violence in any way.

Supreme court case Trump v Hawaii deals heavily with themes of discrimination that can be

directly connected to idea of freedom of religion. In early 2017, President Trump issued EO-1

and EO-2. Essentially, these executive orders prohibited the entry of foreign nationals from

seven different countries on to U.S soil for 90 days, in an attempt to create solid guidelines that

would prevent the likelihood of an attack by foreign terrorist. These seven countries included

Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen all of which have heavy Islamic roots.

Following its issue, Hawaii and several other states decided to challenge the proclamation

arguing that President Trump’s plans were beyond presidential authority according to federal

immigration laws. They also believed his orders were heavily motivated and influenced by bias

and anti-muslim beliefs. In 2018, the court ruled in favor of President Trump stating that all

efforts were constitutional and within presidential authority. Discrimination against a group of

people for their religious beliefs violates one’s right to freedom of religion since, in this case,

foreign nationals were in deed being denied entry in the country for their religious background.

Here, The First Amendment is proven extremely weak.

The case of Edwards v. South Carolina does a great job at displaying the courts failure to protect

and honor one’s freedom of petition. In 1962, 187 African American students were convicted

for disturbance of the peace for peacefully gathering at the South Carolina State Government
building. The students were detained for failure to disperse when ordered to by law

enforcement. Once they receive the ruling, the students petitioned the court for further review

and deliberation on the case. In the end, they were denied due process as the court believed

there were no offenses made. In this situation, the court failed to consider The First

Amendment and its relevance. It is unlawful to incarcerate a group of people for peacefully

assembling when it is well within their rights.

In conclusion, The First Amendment defends one’s basic human right to express themselves.

While it can not be debated the significance of The First Amendment, we can see from several

court cases that The First Amendment is not always fully acknowledged in the way one might

think. Going forward, it is crucial the court do their best to defend First Amendment rights.

Without them America would not know democracy.

 Bibliography

Trump v. Hawaii. (n.d.). Oyez. Retrieved October 8, 2020, from

https://www.oyez.org/cases/2017/17-965

Cox v. Louisiana. (n.d.). Oyez. Retrieved October 8, 2020, from

https://www.oyez.org/cases/1964/24

Edwards v. South Carolina. (n.d.). Oyez. Retrieved October 8, 2020, from

https://www.oyez.org/cases/1962/86

First Amendment. (n.d.). Retrieved from

https://www.law.cornell.edu/constitution/first_amendment