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The First Amendment and Its Stipulations

Oni M. Jones

Department of Journalism and Mass Communication, North Carolina A&T State University

JOMC 393: Communication Law & Ethics

Gary Guffey

October 13, 2020

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Abstract

Established in 1791, the First Amendment protects American citizens basic right to freedom of

the American people. The First Amendment holds many sub- categories under its blanket,

including the peoples’ right to assemble, petition the government for grievances, freedom of

religion, right to criticize power, and the right to assemble. Although these basics rights are

covered, there are many stipulations that can violate the First Amendment and leave citizens in

court. Such as intent to disturb the peace, obscenity, incitement to imminent lawless action, etc.

Most of these key cases that serve as an example of the circumstantial stipulations of the First

Amendment, show that everything is left up to interpretation. Such as Cohen v. California

(1971), Skyywalker v. Navarro (1990), etc. Therefore, for the people to be able to safely exercise

their First Amendment right, a basic understanding of how actions can be interpreted in the

court, is vital.

Keywords: right to assemble, criticize power, obscene, lawless action, interpretation, First

Amendment
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The First Amendment and Its Stipulations

The First Amendment, first adopted in 1791 into the Bill of Rights, was developed to

provide America’s citizens a guaranteed protection of their basic rights. These basic rights

protected under the First Amendment include the rights to freedom of expression and the

freedom of religion. Freedom of expression and freedom of religion are very broad topics, and

therefore have a plethora of protection under these basic rights. Such as, “[The First

Amendment] prohibits any laws that establish a national religion, impede the free exercise of

religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the

right to peaceably assemble, or prohibit citizens from petitioning for a governmental redress of

grievances.”(Legal Information Institute, 2020) The basics of the First Amendment, are that the

government can not create laws that would limit the peoples’ right to assemble, petition for

redress of grievances, and freedom of expression.

The right to assemble includes the peoples’ right to engage in peaceful and lawful

protests. This also includes the right to associate and belief, which is the right to associate with

others for expressive activities that are protected by the constitution. The right to associate also

prevents the government from requiring a group to register or disclose its members which was

recognized in NAACP v. Alabama (1958). The people have the right to petition the government

for redress of grievances, which means the people have the right to make a complaint, petition,

and see the assistance of the government, and no laws can be put in place to prohibit this from

happening. When it comes to the freedom of expression, things are a little more complex. Under

the protection of freedom of speech, is the right to dissent, to monitor, and to criticize power.

Although this seems like the basics, they come with a lot of circumstantial stipulations that can

land a citizen in court.

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Although you have freedom of expression, expression that disturbs the peace is not

protected under the First Amendment. Often, lines have been blurred between disturbing the

peace and criticizing power. In Cohen v. California (1971), Paul Cohen went to the Los Angeles

County courthouse to testify in a case. When he was in the court room, he had his jacket folded

over his arm that was inscribed, “Stop War”, “Fuck the Draft,” with a peace sign. Seeing as he

was in a court room, and his arm was folded over his jacket, the security guard saw this as

worthy of contempt, however, the judge did not. Still, the police officer arrested Cohen once he

left the court room for disturbing the peace. The disturbing the peace statue wasn’t enough to

charge him. The disturbing the peace statue did include indecent language around women or

children, however that only applied to language used in a loud and distracting manner. The

second part of the disturbing the peace statue, was disturbing the peace maliciously and

purposefully with offensive conduct. The judges found this part of the statue, enough to sentence

him to 30 days in jail.

Cohen appealed the court case to the Appellate Department of the Superior Court and

after a lengthy appeal, the court relied on a statutory ground and concluded that conduct must be

tumultuous and offensive. Cohen’s conduct was offensive, yet it wasn’t tumultuous. The state

appealed the case to California Court of Appeal. In the opinion of the California Court of

Appeal, the statue covered Cohens behavior. The statue applied to Cohen because, “The

appellate court construed the statute to apply when a person's willful conduct foreseeably

provokes others to engage in violence or breach the peace. In the court's view, Cohen was guilty

under this test: he had "carefully chose[n] the forum for his views where his conduct would have

an effective shock value. “ Accordingly, the appellate court concluded, he should have known

that others might assault him or forcibly remove his jacket to protect women and children from
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exposure to his "lewd and vulgar language." (Farber, n.d., pp.287-288, ) The court leaves

disturbing the peace up to perception and opinion.

This idea is that Cohen has to anticipate the violent reaction to the clothing he wears.

Which means, that if no one reacted a certain way to his clothing, then there would be no

disturbing of the peace. However, if someone did react to his clothing, the aggressor would

essentially be the one disturbing the peace, however Cohen would be seen at fault. If ,“fuck”,

was the reasoning behind the disturbing of peace, state laws would have to put a limit on the use

of the word in public spaces. However, this also means that “fuck”, would not be allowed

anywhere publicly, no matter the content. This means that things seemingly innocent like, “fuck

cancer”, would not be prohibited. And if there was a negative reaction to something so widely

accepted like this popular phrase, then the wearer of the shirt would essentially be charged with

disturbing the peace. This is something that Judge Harlan, a Judge on the case, agreed with.

Thus, the case was dismissed in the lower court. Although it was dismissed, this shows the limit

of free expression. Freedom of expression is okay and encouraged, but Cohen publicly wearing a

shirt that had a curse word that disagreed with and criticized governmental power/ actions, the

draft and the war, he was “disturbing the peace”. However, like stated before, a shirt saying

“Fuck cancer” may not have caused someone to be held in contempt in charged. Disturbing the

peace is up to interpretation, just like obscenity.

Officials can declare certain bodies of work obscene and too lewd to be heard or seen by

the public, they are essentially censorship laws. Obscenity is something that limits freedom of

expression, and in this case, rap music. In some cases, there is a clear understanding in the line

between obscenity and freedom of expression. For example, in Elonis v. United States (2015),

Anthony Douglas Elonis, posted a rap song to Facebook, threatening his ex-wife, an FBI agent,
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and a kindergarten class. The court determined that the obscenity of the lyrics and the threats

transmitted, were not protected under the First Amendment. Although Elonis said that he was

channeling Eminem and his rap was used as a catharsis for him, the court asked one reasonable

person of the jury to interpret the words of Elonis as a threat. In the end, Elonis was convicted

and sentenced to 44 months of imprisonment.

Although this is a clear case of obscenity and a violation of the First Amendment, there

are some other cases that require more attention and consideration. For example, the censorship

of 2 Live Crew's album "As Nasty As They Wanna Be." In Skyywalker Records v. Navarro

(1990), the Miller Test was applied and the album As Nasty As They Wanna Be was ruled too

obscene to be sold. The Miller Test is a test first developed in Miller v. California (1973) after

Melvin Miller mailed five unwelcome brochures to the manager of a restaurant and his mother,

which contained pictures and drawings of sexual activity. The Miller test draws the line between

obscenity and freedom of expression through the use of three key guidelines. First,  whether the

average person applying contemporary community standards would find the work, taken as a

whole, appeals to the prurient interest;”(Hudson, n.d.) Secondly,  “whether the work depicts or

describes, in a patently offensive way, sexual conduct specifically defined by the applicable state

law”(Hudson, n.d.) Lastly, “ whether the work, taken as a whole, lacks serious literary, artistic,

political or scientific value.”(Hudson, n.d.) Under these three guidelines, the court used, “its own

"knowledge" of the relevant community standard in order to meet two of the three prongs of the

Miller test.” (Beatty, 1991, p. 624) Thus, the selling of As Nasty As They Wanna Be was deemed

obscene and illegal to sell. In fact, on June 9th, 1990, Charles Freeman was arrested in in his

record store in Florida, for selling As Nasty As They Wanna Be.

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Two years later, the plaintiffs appealed the case to the 11th U.S. Circuit Court of Appeals.

In Luke Records v. Navarro (1992), the plaintiffs submitted expert testimony that the album

contained artistic value. It was determined that the judge alone could not determine that the body

of work had no serious artistic value. The first two guidelines of the Miller test seemed to be met,

however all three of the guidelines of the Miller Tests must be met for a work to be considered

obscene. Thus, the decision was overturned.

Other cases that involve rap and the First Amendment are cases like Davidson v. Time

Warner (1997), where a state trooper was murdered by Ronald Howard after he was pulled over.

Howard was listening to Tupac’s 2Pacalypse Now when pulled over and blamed him for the

murder. The court case against Tupac was issued by three family members of the state trooper,

stated that Tupac’s music was an incitement to imminent lawless action.  The plaintiffs used

Tupac’s statement of his music being “revolutionary” in their defense. Seeing as Tupac calling

his music revolutionary doesn’t encourage imminent lawless behavior, it did not hold up in court.

It was determined that the most Tupac meant was to cause violence after the listener understood

the message of his music. Tupac’s album was protected under the First Amendment and the case

was dismissed.

Although the First Amendment seems like a straight to the point amendment, there are

multiple layers to what is covered under the first amendment and what is not. Words, actions,

symbolistic expressions, and artistic expressions all have their limits. Such as expressions meant

to incite violence, disturb the peace, expressions to obscene, etc. Knowing what could violate the

First Amendment is important because anything can be left up to interpretation and can be the

reason citizens end up in court.

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References

Beatty, H. C. (n.d.). Skyywalker Records, Inc. v. Navarro: Enough Already To the Obscene

Results of Miller v. California. Digital Commons at Loyola Marymount University and

Loyola Law School,11, 623-655. Retrieved October 09, 2020.

Egemenoglu, E. (Ed.). (n.d.). First Amendment. Retrieved

from https://www.law.cornell.edu/wex/first_amendment

Facts and Case Summary - Elonis v. U.S. (n.d.). Retrieved October 09, 2020,

from https://www.uscourts.gov/educational-resources/educational-activities/facts-and-

case-summary-elonis-v-us#:~:text=The 

Farber, D. A. (1980). Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan,

and the Enduring Significance of Cohen v. California. Duke Law Journal, 1980(2),

283.doi:10.2307/1372271

Franklin, S. (2009). NAACP v. Alabama. Retrieved October 11, 2020,

from https://www.mtsu.edu/first-amendment/article/68/naacp-v-alabama 

Jr., D. L. (2018). Miller Test. Retrieved October 08, 2020, from https://mtsu.edu/first-

amendment/article/1585/the-miller-test

Jr., D. L. (2009). Rap Music and the First Amendment. Retrieved October 09, 2020,

from https://www.mtsu.edu/first-amendment/article/1582/rap-music-and-the-first-

amendment

Vile, J. R. (2009). Elonis v. United States. Retrieved October 11, 2020,

from https://mtsu.edu/first-amendment/article/1455/elonis-v-united-states

Annotated Bibliography
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Beatty, H. C. (n.d.). Skyywalker Records, Inc. v. Navarro: Enough Already To the Obscene

Results of Miller v. California. Digital Commons at Loyola Marymount University and

Loyola Law School,11, 623-655. Retrieved October 09, 2020.

This law review details the famous Skyywalker Records v Navarro (1990) court case.

This case was one of the many court cases where the government deemed a body of work

as obscene. Details are included about the ruling of obscenity and outcome.

Egemenoglu, E. (Ed.). (n.d.). First Amendment. Retrieved

from https://www.law.cornell.edu/wex/first_amendment

This resource page details information about the First Amendment. Includes freedom of

religion, freedom of speech/press, right to assemble and petition.

Facts and Case Summary - Elonis v. U.S. (n.d.). Retrieved October 09, 2020,

from https://www.uscourts.gov/educational-resources/educational-activities/facts-and-

case-summary-elonis-v-us#:~:text=The 

This article details information about the Elonis v. United States court case. An important

court case in obscenity and details the line between figurative expression and serious

threats.

Farber, D. A. (1980). Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan,

and the Enduring Significance of Cohen v. California. Duke Law Journal, 1980(2),

283.doi:10.2307/1372271

Information about the famous Cohen v. California court case. A leading court case in

disturbing the peace, details the line between symbolic expression and intent to disturb

the peace.
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Franklin, S. (2009). NAACP v. Alabama. Retrieved October 11, 2020,

from https://www.mtsu.edu/first-amendment/article/68/naacp-v-alabama 

This article entry of the First Amendment Encyclopedia details all information about the

court case NAACP v. Alabama. This court case was an important contribution to the right

to assemble and expressive association.

Jr., D. L. (2018). Miller Test. Retrieved October 08, 2020, from https://mtsu.edu/first-

amendment/article/1585/the-miller-test

Details information about the Miller test that came as a result of the Miller v. California.

The Miller test includes three key guidelines that was applied to Skyywalker v. Navarro.

Jr., D. L. (2009). Rap Music and the First Amendment. Retrieved October 09, 2020,

from https://www.mtsu.edu/first-amendment/article/1582/rap-music-and-the-first-

amendment

The history of rap music being limited censored because of the First Amendment.

Includes cases of obscenity, intent to cause lawless action, and etc.

Vile, J. R. (2009). Elonis v. United States. Retrieved October 11, 2020,

from https://mtsu.edu/first-amendment/article/1455/elonis-v-united-states

This article details information about the Elonis v. United States court case. An important

court case in obscenity and details the line between figurative expression and serious

threats.
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