persuasive essay on the first amendment

First Amendment

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices . It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government .

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Amendment i.

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.

Wex Resources

The establishment clause.

Establishment Clause

Lee v. Weisman (1992)

Van Orden v. Perry (2005 )

Free Exercise Clause

State Action Requirement

Free Speech

Captive Audience

Prior Restraint

Absolute Privilege

Advocacy of Illegal Action

Fighting Words

Commercial Speech

Government Speech

Brandenburg Test

Schenk v. United States (1919)

Gitlow v. New York (1925)

Roth v. United States (1957)

Texas v. Johnson (1989)

Near v. Minnesota (1931)

New York Times v. Sullivan (1964)

Peaceful Assembly

Unlawful Assembly

Redress of Grievances

Why You Should Care About the First Amendment

The first amendment gives each of us freedom:.

• To set our own values.
• To express ourselves openly on whatever topic we want without fear of government control or punishment.
• To join with others to make our views known and perhaps create positive change on behalf of all of us.

These freedoms can help define who we are as individuals in a complex, changing, self-governing society.

The highest purpose of free expression is to bring about change in society. The First Amendment contains five different freedoms that allow us to do that. Freedom of religion allows us to develop our own values. Freedom of speech lets us express our views and values even when they’re critical of current systems. The freedom of the press allows us to get uncensored information about the world around us. Then you have freedoms of petition and assembly, which allow us to gather with like-minded people and ask for change. These are our most vital tools to having and living in the society that we want.

— Lata Nott , Freedom Forum fellow for the First Amendment

The First Amendment is the ultimate embodiment of just “feeling free.” In addition to being able to say what I want to say, I can read what I want to read, watch what I want to watch and listen to what I want to listen to. Now, I may not want to read a particular book, watch a particular television program or movie, or listen to a particular song or podcast, but it’s an exceedingly comforting feeling to know that my chosen book, program, movie, song or podcast is always waiting for me when I want it.

— Kevin Goldberg , Freedom Forum First Amendment specialist

The five freedoms protected by the First Amendment are what define us as a nation. They are unique in history and unique in the world today. In the founders’ view, it was absolutely essential to a self-governing nation that citizens be able to freely discuss, debate and decide on the best possible solutions for the greatest number of people. Our First Amendment freedoms make democracy work.

— Gene Policinski , Freedom Forum senior fellow for the First Amendment

All of our liberties flow from the First Amendment. By exercising freedoms of religion, speech, press, assembly and petition, Americans have expanded civil rights and worked to create a more just and free society. Simply put, no significant movement for change in our history would have been possible without the five freedoms guaranteed by the First Amendment. We still have much work to do. But thanks to the First Amendment, Americans are protected to advance the ongoing struggle to achieve “liberty and justice for all.”

— Charles Haynes,  Freedom Forum senior fellow for religious liberty

The First Amendment is our blueprint for personal freedom, what Justice Benjamin Cardozo called the “matrix” – the indispensable freedom that ensures all other liberties. The First Amendment gives us the right to criticize government officials, to practice whatever religious faith we want or none at all, to report on controversial issues, to assemble together and to petition the government for a redress of grievances. The First Amendment gives us the opportunity to participate in our government, to make our voices heard, and to dissent from majoritarian views. It is the essence of freedom.

— David L. Hudson Jr ., First Amendment fellow of the Freedom Forum and law professor at Belmont University

This freedom protects all – even the growing number of religiously unaffiliated, or “nones” – as we each decide what values, principles and beliefs shape our lives, by forbidding the government from telling us what to think or believe.

Sometimes called the right of conscience, it protects all from action by government to control our thoughtful independence and prohibits the government from supporting any one faith or personal belief over others.

This freedom protects the expression of our individual values, ideas and opinions and prevents the government from stifling the spoken word and from controlling any of the ways we reach out to others. The government cannot control or punish any of us for what we choose to say, with very few exceptions that include defamation, true threats, obscenity, fraud and incitement to violent acts that endanger others. The government cannot silence any of us for the way we choose to speak – subject to reasonable “time, place and manner” rules so we don’t unfairly intrude on others’ rights.

This freedom protects our right to gather and report news and information, whether that is a news story, broadcast or post, a restaurant review or a political opinion. The information gathered by journalists allows people to make decisions and participate in democracy, such as by voting or petitioning the government.

This freedom protects our right to gather with people who hold the same views, whether that is in a meeting room, a stadium rally or with a single other person on a sidewalk. It is a clear path from developing our individual views to reaching out to others and meeting with those who share or support your views as a means of organizing and amplifying a message to make change or support the status quo.

The least-known freedom protects the ultimate use of the other four freedoms to defend and refine our system of laws and self-government. It protects us when speaking out to those in power, seeking change or asking for no change. It may protect actual petitions you might sign. It also protects speaking out at a local city council session or school board meeting. And it ensures our right to gather with others to hire someone else – a lobbyist, for example – to go to the government on our behalf.

Keep in mind:

The First Amendment only restrains the government’s power – not that of parents or private employers, for example.

Free Speech on Social Media: The Complete Guide

Social media platforms’ policies govern most speech users post to them.

Prayer in School: What’s Protected by the First Amendment?

Prayer in school is a divisive issue. Here’s what is – and isn’t – protected by the First Amendment.

The First Amendment in action

Protecting the First Amendment rights of others can be very hard to do. But defending these core freedoms for others – even those we strongly disagree with – protects our freedoms from anyone else who would take them away from us.

Here are some examples of people who exercised their First Amendment rights – and protected ours in the process:

10+ of the Most Prominent Sports Protests of All Time

These sports protests shaped conversations far beyond the final buzzer.

Athletes, Activism and the First Amendment: A Conversation With Nate Boyer

Ex-NFL player and Army veteran Nate Boyer talks about the power of the First Amendment.

9 Women Who Used the First Amendment to Shape History

These women embraced their First Amendment freedoms to champion causes they cared about.

Seven Pioneering Journalists Who Championed Civil Rights

Discover 7 civil rights journalists who helped break barriers.

LGBTQ Activism: 5 Must-Know Stories

How LGBTQ activists have used religion, speech, press, assembly and petition.

U.S. Rep. John Lewis: A First Amendment Champion

Few people in history have so exemplified the hopes of the nation’s founders that the First Amendment would enable future generations to make this country a better place.

Why the Freedom Forum cares about the First Amendment

The Freedom Forum views the First Amendment as the cornerstone of our government by, for and of the people. We envision a nation where everyone knows, values and defends those freedoms. And we believe that encouraging the broad understanding and vigorous use of these fundamental freedoms by the people is the best way to preserve and protect the First Amendment for future generations.

It’s not just us – Americans care about the First Amendment

Our conversations with people of all ages from all over the country show that we are not alone in our love for the First Amendment.

More than 90% of Americans consider the First Amendment vital, according to our Where America Stands survey .

Survey: Where America Stands on the First Amendment in 2023

Does America still love the First Amendment? It’s complicated.

Survey Says We’re Divided About Our Rights — and First Amendment Could Bridge Divisions

Where Americans stand on the First Amendment in 2022.

Learn more about the First Amendment

The Freedom Forum can help you better understand the First Amendment, how it works and how it affects you:

Recording in Public: Is It Illegal to Record Without Permission?

The specifics of recording in public – and what you can do with a recording – can get complicated quickly.

What Is Separation of Church and State?

Where did this term come from and why does it matter?

Is Obscenity Protected by the First Amendment?

Everything to know about obscenity and the First Amendment.

Is Hate Speech Illegal?

Everything to know about the legality of hate speech.

Flag Desecration: Can You Burn the American Flag?

How and why flag burning became protected speech.

What Speech Is Protected by the First Amendment?

What speech is protected by the First Amendment? What speech isn’t? Learn all about protected speech in this guide.

91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

• Analysis of the Case: Violation of the First Amendment History of the case: The candidate filed a lawsuit in the Maryland Circuit Court alleging violations of the First and 14th Amendments to the U.S.
• Vaccination in the Context of the First Amendment The purpose of this paper is to review the dilemma in the context of the First Amendment and the free exercise of religion.
• The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
• Cyberbullying and the First Amendment Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to […]
• Pornography or Obscenity and the First Amendment Amendment 1 of the US Constitution states that the “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, […]
• Free Speech in the First Amendment The first amendment of the Constitution states, “Congress will 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 […]
• Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
• Violent Video Games and First Amendment Protection Violent games appear to be a legitimate type of media with its right for free expression; however, minors should also be protected from the violent and sexual content of video games because they lack media […]
• Does Title VII Conflict With the First Amendment The government is not justified to disallow religious expression at workplaces by the Establishment Clause of the First Amendment. Title VII statute and the First Amendment both provide protection for an employee’s religious rights.
• Founding Fathers Religion: The First Amendment Role in the Church-State Separation As a result, a resolute transformation from the Puritan Fathers in 1639, who uphold the religion as a foundation of any society, to the Founding Fathers in 1787, who accepted freedom of religion as an […]
• Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
• First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
• What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
• Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
• On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
• The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
• US Constitution Reflections on the First Amendment Paper The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.
• First Amendment Rights and Access to Opinions
• Censorship and the First Amendment: The American Citizen’s Right to Free Speech
• The First Amendment and Its Impact on Education
• Should the First Amendment Stop Protecting Hate Speech
• The First Amendment Speaks on the Freedoms of Religion
• Interpreting the First Amendment of the Constitution
• Should Racist Speech Enjoy Protection Under the First Amendment
• How the First Amendment Rights Have On Advancing Democracy
• The First Amendment and the Constitutional Freedoms in American Schools
• The First Amendment and Conservative Rulings of the Supreme Court
• Ever-Changing Freedoms: The First Amendment of the American Constitution and Challenges It Faces
• How the First Amendment Protects Freedom of Speech
• The First Amendment and Its Impact on Media
• Case Problems Involving the First Amendment
• The First Amendment and Its Legal Constrains
• Banning Books Goes Against the First Amendment
• Federal District Court Alleging First Amendment Violations
• The First Amendment and Label Drug Promotion
• Discussing Three Freedoms From the First Amendment
• The First Amendment and Its Impact on Language
• Public Safety Outweigh Petitioner’s First Amendment Right
• The Ambiguity and Confusion From the First Amendment
• The First Amendment and the American Judiciary
• Civil Rights and First Amendment
• Cyberbullying and the First Amendment
• Does the First Amendment Affect Your Livelihood
• The First Amendment and Right to Privacy
• Net Neutrality and the First Amendment: Who Has the Right to Free Speech
• Neo-Nazis and Their First Amendment Rights
• Public High School Students Have the First Amendment Right
• Espionage Act Conflicts First Amendment Rights in Wikileaks Case
• Comparing Our First Amendment Rights to the Rights of Those in George Orwell’s 1984
• The Role and Importance of the First Amendment of the Constitution
• First Amendment Rights and Pragmatic Solutions
• The First Amendment: History and Development
• First Amendment Rights, Privacy, and the Paparazzi
• The First Amendment Constitution on the Freedom of Expression
• The Relation Between the First Amendment and Music Censorship
• The First Amendment Anti-discrimination Law
• Does the First Amendment Protect False Campaign Speech
• What Is the Main Purpose of the First Amendment?
• How Free Speech Under the First Amendment Developed?
• What Is the Connection Between Anti-semitism and the First Amendment?
• Does Banning Books Violate the First Amendment?
• Was the First Amendment to the US Constitution Prohibition?
• What Are the First Amendment Issues?
• Does the First Amendment Guarantee the Right of American Citizens to Freedom?
• How Does Censorship Conflict With First Amendment Freedom of Speech?
• What Rights Does the First Amendment Guarantee to Citizens?
• Does the First Amendment Govern Cyberbullying?
• Did President Hoover Limit the First Amendment Rights of the Bonus Army?
• What Are the First Amendment Freedoms?
• Does the Espionage Act Conflict With First Amendment Rights?
• What Changes Did the First Amendment Make to the Constitution?
• How Does the First Amendment Guarantee Freedom of the Press?
• What Is the Significance of the First Amendment to Civil Society?
• What Is the Work of the First Amendment Committee?
• How Does the Supreme Court Interpret the First Amendment?
• What Religious Cases Does the First Amendment Control?
• How Are First Amendment Rights Applied and Limited?
• Does the First Amendment to the US Constitution Regulate Ever-Changing Freedoms?
• How Do First Amendment Rights Affect the Development of Democracy?
• What Is the Interpretation of the First Amendment to the Constitution?
• Does the First Amendment Affect Your Livelihood?
• Does the First Amendment Limit the Government’s Power?
• What Inappropriate Words Should Be Removed From the First Amendment?
• Does Public Safety Override a Plaintiff’s First Amendment Right?
• Should Rap Songs Be Protected by the First Amendment?
• Does the First Amendment Protect False Campaign Speech?
• Should Racist Speech Enjoy Protection Under the First Amendment?
• US History Topics
• Freedom of Speech Ideas
• Sixth Amendment Topics
• Freedom Topics
• Tolerance Essay Ideas
• Civil Law Paper Topics
• Human Rights Essay Ideas
• Media Bias Questions
• Chicago (A-D)
• Chicago (N-B)

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Censorship and the First Amendment - The American Citizen’s Right to Free

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

George Orwell

Adopted in 1791, the First Amendment, states 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 to petition the Government for a redress of grievances.” (Pilon, p. 13) The freedom of speech documented in the First Amendment is not only a constitutional protection, but also an inevitable part of democratic government and independence, which are essential values in our society. “Censorship,” according to Justice Oliver Wendell Holmes, “is an almost irresistible impulse when you know you are right” (Sunstein, p. 25). That is why the American citizen’s right to free speech is should be held as the highest virtue and any censorship of freedom of speech should not be allowed, but only respected.

Freedom of speech is essential part of democratic government, because the only way truth can emerge is when there is an open competition of ideas. However, there is a strong support of censorship when people start mentioning extremely offensive opinions. Should the freedom of speech be limited in this case? The answer is “No”. “If liberty means anything at all,” writes George Orwell, “it means the right to tell people what they do not want to hear.” (Cox, p. 36) If we want to enjoy the freedom fully, the full protection should be given to the freedom of speech; there are no compromises about it.

Freedom of speech protected by the First Amendment is not just a right, which can be declared or abolished. According to the “liberty theory”, proposed by some legal scholars, freedom of speech is an essential part of the liberty of every person, who pursues an individual self-determination and self-realization (Cox, 1981). Thus, freedom of speech is also a part more global right to freedom of personal development and self-expression.

Another theoretical ground to support the freedom of speech is called “tolerance theory”. It holds that the ability to teach and promote tolerance is one of the most important assets of freedom of speech (Cox, 1981). From this perspective, freedom of speech itself excludes any type of intolerance, which sometimes appears in a threatening form (religious intolerance, racial intolerance. The “tolerance theory” implies self-restraint, which is the only appropriate response to any ideas, even those that we may personally dislike or hate. The “tolerance theory” provides a broader context for exercising tolerance in a conflict-ridden democratic society.

In legal practice there are certain restrictions on freedom of speech imposed by the Supreme Court. They define a few categories of speech, which are considered to be not fully protected by the First Amendment. These categories include defamation, advocacy of imminent illegal conduct, obscenity and fraudulent misrepresentation (Farber, 1998). However, if the speech doesn’t fall within one of these categories, there are no grounds for the government to argue that freedom of speech should be restricted because of its harmful content.

One of the common bases for partial censorship is proof that the freedom of speech causes imminent illegal action. The Supreme Court has already drawn a careful line between general abstract theories and political dissent on one hand and particular illegal acts incitement on the other. This line is drawn by definition of “clear and present danger” test (Farber, 1998). The government cannot sue the speech on the basis of its tendency or possibility illegal conduct incitement. Before any speech is punished on the grounds of incitement, there is an obligatory three-part criterion that should be met. First, the speech must directly incite lawless action. Second, the context of speech must imply imminent breaking of the law, rather than call for illegal conduct at some indefinite future time. At last, there should be a strong intention to produce such conduct(Farber, 1998).

Such “clear and present danger” test determines the level of probability of threat imposed by the speech in question. However, the actual evil, which the government tries to prevent by outlawing the advocacy, does not outweigh the harm of outlawing the free speech. Only when the imposed danger becomes evident, the freedom of speech may be questioned. But we must be aware that the price for preventing several cases of the openly declared illegal conduct may be paid by restriction of one of the most essential rights that constitute freedom for the entire nation.

For the wellbeing and public safety the Supreme Court has imposed certain regulations on the freedom of speech not because of its content, but because of the time, place and manner the speech is being expressed (Farber, 1998). However, these rules do not limit the actual freedom of speech and are not even upheld, if there is no public need for this.

However, when it comes to the content-neutral regulation, it raises many controversial issues. The content-neutral regulation requires a very careful distinction and therefore may sometimes be misinterpreted. There is a raising concern that such regulation may weaken people’s right to participate, especially if the government puts too many restrictions on how the ideas should be voiced.

Thus, by analyzing the current issues concerning the First Amendment right to free speech in the United States, I wanted to show the perspective of outlawing this right and the negative aspects that such outlawing may involve. Freedom of speech has served a crucial role for the right to dissent and for the entire principle of democracy in our society. This law was developed during the course of American history and only after numerous struggles it was achieved. The evolution of this law is still in progress, however, the limitation of the basic right to free speech may as well limit our freedom and democracy, therefore should be respected and protected.

References:

Cox, A. Freedom of Expression. Cambridge: Harvard Univ. Press, 1981.

Farber, D. The First Amendment. NY: Foundation Press, 1998.

Pilon, Roger. (Preface) The Declaration of Independence and the Constitution of the United States. Cato Institute, 2000.

Sunstein, C. Democracy and the Problem of Free Speech. NY: Free Press, 1993.

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Home — Essay Samples — Law, Crime & Punishment — American Law — First Amendment

Essays on First Amendment

The First Amendment of the United States Constitution guarantees the freedom of speech, religion, and the press, as well as the right to assemble and petition the government. As such, it is a crucial topic for discussion and exploration in essays. When choosing a topic for a First Amendment essay, it's important to consider the significance of the issue, the relevance to current events, and the potential for in-depth analysis.

The First Amendment is the cornerstone of American democracy, protecting the fundamental rights of individuals and the press. It has been a subject of debate and controversy throughout history, shaping laws, policies, and societal norms. Understanding the complexities of the First Amendment is essential for citizens, policymakers, and legal professionals.

When selecting a topic for a First Amendment essay, it's essential to consider both the wide-ranging impact of the Amendment and its specific applications in different contexts. It's also important to choose a topic that aligns with personal interests and expertise. Researching current events, legal cases, and scholarly articles can help identify compelling and relevant topics for exploration.

Recommended First Amendment Essay Topics

Below is a detailed list of recommended First Amendment essay topics, divided into categories for ease of reference:

Freedom of Speech

• The impact of social media on freedom of speech
• Hate speech and the limits of free expression
• The role of free speech in academic settings
• The First Amendment and government censorship
• Artistic expression and freedom of speech

Freedom of Religion

• Religious freedom and the workplace
• The intersection of religious beliefs and public policy
• Challenges to religious freedom in a diverse society
• The use of religious symbols in public spaces
• Religious exemptions and the First Amendment

Freedom of the Press

• The role of the press in holding government accountable
• Press freedom and national security concerns
• The impact of digital media on press freedom
• Media bias and the First Amendment
• The future of journalism and First Amendment protections

>Right to Assemble and Petition

• The history and impact of protest movements in the United States
• The use of technology in organizing and participating in protests
• The challenges of balancing public safety and the right to assemble
• The role of petitioning in influencing government decision-making
• The global implications of the right to assemble and petition

Choosing a topic for a First Amendment essay requires thoughtful consideration and research. By selecting a topic that aligns with personal interests and addresses current issues, writers can produce compelling and relevant essays that contribute to the ongoing conversation about the First Amendment and its impact on society.

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The First Amendment and the Abortion Rights Debate

Sofia Cipriano

Spring 2024

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that   “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

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Research & Learn

Table of contents, free speech essay contest.

The Details

The contest may return in 2024. Check back for updates.

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Open to juniors and seniors in U.S. high schools, including home-schooled students, as well as U.S. citizens attending high school overseas. Additional questions regarding eligibility may be emailed to [email protected] .

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FIRE must receive all entries by 11:59 EST, December 31, 2021. Winners will be announced by February 15, 2022.

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Before You Start

Get to know us! The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech , legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. In addition to defending the rights of students and faculty, FIRE works to educate students and the general public on the necessity of free speech and its importance to a thriving democratic society.

The freedom of speech, enshrined in the First Amendment to the Constitution, is a foundational American right. Nowhere is that right more important than on our college campuses, where the free flow of ideas and the clash of opposing views advance knowledge and promote human progress. It is on our college campuses, however, where some of the most serious violations of free speech occur, and where students are regularly censored simply because their expression might offend others.

We also encourage you to take advantage of our other educational resources , including our First Amendment Library , our continually-updated Newsdesk , our K-12 Video Library , and our many publications , including our Guide to Free Speech on Campus.

In a persuasive letter or essay, convince your peers that free speech is a better idea than censorship.

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