All about the First Amendment

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It’s the most sacred and beloved democratic institution that no one can quite remember. Many Americans would go to war for the First Amendment, and many fewer could tell you what it actually says, even though, at just 45 words, it’s not exactly War and Peace. Congress shall make no law… something something… well, you get the gist.

For more than two centuries, in cases ranging from the gravely serious to sitcom-level absurdity, American jurisprudence has struggled to define what exactly the First Amendment protects: freedom of religion, speech, and the press, plus the rights of peaceful protest and petitioning. What these things mean in practice is the real can of worms. When the Framers set out to protect the people from government overreach, there was no such thing as TV, much less TikTok or our mutual acquaintance Claude. Many of the people weren’t even considered people. 

That goes a long way toward explaining where we are today, with vast swaths of the populace at once ferociously loyal to their vague impressions while ignorant of precedent and case law. 

Good thing I have the right to say that, though! For more constitutional conundrums, scroll on down below.

By the digits

0: The number of times that “separation of church and state” appears in the First Amendment, a common misconception about its exact phrasing, if not its conceptual scope. It’s also the number of times the word “speaker” appears in the Amendment. 

1: The number of First Amendment cases involving talking cats that American courts have ruled on (so far, anyway). 

5 to 4 and 6 to 3: The narrow and then widening Supreme Court majorities that have reshaped modern “1A” doctrine over the last several decades. 

12: The number of hours that the fate of TikTok was in question for American users when, in January 2025, the Supreme Court upheld a law forcing Chinese owner ByteDance to sell it, ruling that national security concerns outweighed First Amendment protections. 

$787.5 million: The settlement reached after Dominion $D Voting Systems sued Fox News for airing wild conspiracy theories about the voting machine company. It’s a reminder that the First Amendment protects citizens from government limitations on speech; it doesn’t mean that media companies can knowingly publish untruths without consequences.

1A, AI, LOL?

The First Amendment, ratified in 1791, was established to prevent the government from endorsing a specific religion and silencing its critics. What it’s never meant — despite widespread belief to the contrary — is that anyone has to employ you, give you a platform, join your cult, or automatically tolerate your speech or symbolic actions. The constitutional amendments protect us from “state actions,” not so much from each other.

Terms and conditions apply, however: Courts have now spent hundreds of years arguing about where the lines fall. In 1919’s Schenck v. United States,, the Supreme Court upheld the conviction of a man who distributed anti-draft leaflets, giving us the “shouting fire in a crowded theater” standard. In 1969, Brandenburg v. Ohio set another threshold: Speech can only be restricted if it's likely to produce “imminent lawless action.” In 2010, Citizens United extended some First Amendment protections to corporations. Money talks!

And what about machines. Do they talk, too?. Recent cases have established algorithms as forms of editorial judgment. A likely next big thing? Deciding whether AI has First Amendment rights. In a recent case, a Florida mother sued Character.AI after her 14-year-old son died by suicide following months of interactions with a chatbot. The company argued the First Amendment protected its outputs as speech. The case is being settled, but others are popping up around the same issues, and one thing seems certain: The Framers never saw ChatGPT coming. 

Quotable

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

—The First Amendment to the U.S. Constitution, 1791. All 45 words.

Brief history

1791: The First Amendment is ratified as part of the Bill of Rights, two years after the Constitution itself, and mostly because several states refused to split the tab without it. 

1927: In Whitney v. California, the Supreme Court upholds the criminal conviction of pacifist Anita Whitney for helping to organize a new left-wing political party. The ruling is best remembered nowadays for Justice Louis Brandeis’ eloquent concurrence. It’s considered among the greatest defenses of free speech ever written, even though Brandeis was disagreeing with aspects of the Court’s decision. 

1969: In Brandenburg v. Ohio, the high court changes course, adopting a new standard as it overturns a KKK member's criminal conviction. The ruling set the modern standard that speech is protected unless it’s intended to produce “imminent lawless action.” Some modern-day critics look askance at the courts upholding convictions of pacifists but freeing KKK members. 

2024: In Moody v. NetChoice, the Supreme Court answers the question of whether social media algorithms count as protected speech. In the course of this, Justice Amy Coney Barrett raises the question of whether AI-generated content might qualify as speech; the issue remains live.

2024-present: In Garcia v. Character Technologies, a grieving mother sues Character.AI after her 14-year-old son took his own life following months of interactions with a chatbot. The company claims First Amendment protection. 

Fun fact

Back in the 1980s, a couple in small-town Georgia had a cat named Blackie, who they claimed could speak a few words. When they charged people to hear Blackie talk, the city said they needed a business license. The couple argued that requiring a license violated Blackie's First Amendment right to free speech. Courts did not agree. First Amendment jurisprudence remains a rich tapestry. 

Watch this

In this clip, Family Guy pithily rehashes early constitutional history.