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This article is part of a series on the Constitution of the United States of America Preamble and Articles of the Constitution

The First Amendment to the United States Constitution is a part of the United States Bill of Rights that protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press, and right to petition.

The Establishment Clause does not allow the government to support one religion more than any other religion. The government also can not say that a religion or a god is true. This is often described as "separation of church and state", where "state" means "the government". It also does not allow the government to establish a national religion. It allows people to debate religion freely without the federal government of the United States getting involved. The clause did not stop the various states from supporting a particular religion, and several states did.

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.

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First Amendment to the United States Constitution - Simple ...

On Friday, August 11, I traveled to Charlottesville, Virginia to attend my co-clerks wedding. I was generally familiar with the controversy over the removal of the Robert E. Lee statue, but was not aware that white supremacist demonstrations were scheduled for the weekend. After the rehearsal dinner wrapped, I drove back to the hotel along Main Street. As we approached the Rotundathe center of the campus designed by Thomas Jefferson himselfthe traffic ahead suddenly slowed to a crawl. In the distance, we saw some lights. At first glance, it appeared to be a candlelight vigil, but we quickly realized what was going on. Hundreds of white nationalists with torches were walking down the steps of the Rotunda, chanting something incoherent, though the word Jews was distinctly pronounced. The sight was surreal; I was more stunned than afraid.

Our hotel was a few blocks away. We drove back to the room, and checked #Charlottesville on Twitter to see what was going on. Moments earlier, the police had declared the gathering an unlawful assembly, and broke it up. (Some reports suggest pepper spray was fired).

This scene, however, was but a mere prelude. Saturday at noon, the Nazis planned to assemble at Emancipation Park, formerly known as Lee Park, to protest the removal of the Lee statue. Unsure of what would happen, we decided to spend the day out of town at Montpelier, the estate of James Madison. There was a strange aspect of visiting the home of the primary author of the First Amendment, while miles away, that same First Amendment was enabling contemptible bigots to inflict violence and, tragically, the loss of life.

The Battle of Charlottesville will be studied in many quarters for many years, but this early entry will focus on the role played by the First Amendment.

Kessler v. City of Charlottesville

On May 30, Jason Kessler applied for a permit to hold a rally on August 12 in Emancipation Park. According to his attorneys at the ACLU and the Rutherford Institute, he chose that location because the Plaintiff wishes to communicate a message that relates directly to the Parkspecifically, his opposition to the Citys decisions to rename the Park, which was previously known as Lee Park, and its plans to remove a statue of Robert E. Lee from the Park. (I have been quite critical of the ACLU for its caving on certain free speech issues, but here, and with its defense of Milo Yiannopoulos, the organization is staying true to its historic mission). Kessler estimated that 400 people would attend, and stated that he absolutely intends to have a peaceful rally and his group would avoid violence. Initially, the City of Charlottesville granted Kesslers application, and also those of other counter-protestors. After the application was granted, however, business leaders in Charlottesville urged that the rally be moved to McIntire Park, which was a mile away. McIntire Park is much larger and has far fewer entrances. Thetopic was also discussed at City Council meetings. Members of the Council spoke out against the white supremacists on social media.

On August 7, the City revoked Kesslers permit, modif[ying] the application to allow a rally in the larger McIntire Park. The city cited safety concerns based on the number of people who were expected to attend Kesslers rally. Specifically, the government explained that holding a large rally at Emancipation Park poses an unacceptable danger to public order and safety. No sources were provided to justify those concerns that had come to the Citys attention. The government cited conservative estimates of no less than 1,000, with as many as 2,000 or more counter-demonstrators in attendance based on internet-based marketing efforts by the Plaintiffs. While Kesslers permit was revoked, the city did not revoke the permits of the counter-protestors, who were still approved to rally within blocks of Emancipation Park.

On August 10, Kessler sought a preliminary injunction in the U.S. District Court for the Western District of Virginia, barring the City from revoking the permit to protest in Lee Park. The motion stated that the City will suffer no harm to its legitimate interests if preliminary relief is granted. Regardless of where the demonstration takes place, the City has an obligation to secure and protect the safety of the demonstrators and the public. The lawyers added that [t]he City's expressed desire to provide security and protection at an alternative site because it would be easier to do so . . . is not a sufficiently substantial governmental interest to override Plaintiff's First Amendment right.

The following day, the City of Charlottesville filed a brief in opposition to Kesslers motion for a preliminary injunction. The government argued that the decision to move the plaintiffs protest from Emancipation Park to McIntire Park was justified without reference to speech content or the Plaintiffs viewpoint, [] was narrowly tailored to serve a significant governmental interest, and [] left open ample alternative channels for communication. The government added that Kesslers complaint does not contain sufficient allegations to support a claim that the City and Mr. Jones were motivated by fears about how counter-protesters will respond to the Plaintiffs rally.

The judiciary would disagree. After a hearing, on the evening of Friday August 11, Judge Glen E. Conrad issued a preliminary injunction, requiring the City of Charlottesville to allow the white supremacists to assemble in Emancipation Park. (The federal courthouse is about three blocks from that park). The court dismissed the governments speculation about the crowd size, concluding that there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration. Crucial to Judge Conrads analysis was the fact that Kesslers permit was revoked, but the permits of the counter-protestors were not:

The disparity in treatment between the two groups with opposing views suggests that the defendants' decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him. This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler's political viewpoint.

Leave aside for now the significance of the court looking to statements on social media by members of government that conflict with the Citys official position to find animus. The courts analysis focused exclusively on the irreparable harm that would be faced by Kessler. There was scant mention of the possible harms to public safety. The closest the court came to addressing this point was noting that a change in the location of the demonstration would not eliminate the need for members of the City's law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City. But beyond these sentiments, the opinion hinged almost entirely on the fact that the plaintiffs were likely to succeed on the merits.

Free Speech on the Grounds

In hindsight, the value of the protestors speech was minimal; the cost to public safety was tragic. Shortly after Judge Conrads ruling was issued, the torch-lit demonstration began at the Rotunda. Many were injured as torches and other projectiles were thrown. Roughly twelve hours later, the riots would commence at Emancipation Park. It is rare that a judicial decision can have such an immediate and palpable effect on both public safety and individual liberty.

By the end of the horrific day, there were more than three-dozen injuries. Heather D. Heyer was murdered. Two Virginia State troopers died when their helicopter crashed outside of Charlottesville. (I observed the helicopter hovering over Emancipation park throughout the day). Shortly after the violence began, the Mayor of Charlottesville tweeted, For all watching events in crowded, downtown Cville: this is EXACTLY why City tried to change venue to McIntire-but court wouldnt allow. Had the protest been held at the larger McIntire park, perhaps the police could have kept a stronger control on crowd size, and automobile traffic. Perhaps not.

As a matter of First Amendment law, Judge Conrads opinion is correct. The Citys decision to revoke the plaintiffs permit, but not those of the counter-protestors, gave rise to a very strong presumption that the decision was made based on the content of the nationalists speech. My understanding is that the City merely overlooked revoking the other permits. This blunder, however, provided the basis of the courts decision.

Moreover, there was no concrete evidence that the crowd size would increase, beyond the speculation based on social media traffic. Merely asserting a generalized interest in safety, without more, cannot justify the revocation of the permit in this manner. Indeed, had the permit never been granted in the first place, the City could have avoided the presumption of animus against the plaintiffs bigoted speech. Much attention will be paid to how the Charlottesville Police Department managed the affair. The Citys attorneys also deserve some scrutiny. Had the case been lawyered better from the outset, the analysis would be much closer. If the government could have shown that in the larger park, traffic could have been better cordoned off, the requisite scrutiny may have been met. But here we are.

The Social Costs of the Bill of Rights

The constitutional questions here are difficult and complex. As usual, Justice Robert H. Jackson stated the issue far better than I possibly could. Here is an excerpt from his iconic dissent in very apt case of Terminello v. Chicago:

[U]nderneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. . . .

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. . . .

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The Battle of Charlottesville illustrates, once again, the social costs imposed by the Bill of Rights.

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The First Amendment on the Grounds in Charlottesville - Lawfare (blog)

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry

In the wake of the tragic events this past weekend in Charlottesville, a number of the white supremacists protesting have been identified and outed by social media and then subsequently fired from their employment.

One issue that has arisen is the argument that these individuals have a First Amendment right to speak their minds, however wrong they may be, and to not suffer negative consequences. That is not true. The First Amendment offers almost zero protection for individuals who engage in hate or other inappropriate speech who are then fired from private sector employment.

There are very limited forms of protection for federal and public sector employees under the First Amendment only because the government implements employment actions. Generally, a government employee must be engaging in speech that is considered a matter of public concern to receive some protection.

That protection can be taken away if it interferes with the function of a government agency. In our experience, a public sector employer might need to take additional steps but can usually find ways to fire a public employee for engaging in hate speech.

In sum, not much has changed since the 1892 case McAuliffe v. Mayor of New Bedford in the Supreme Court of Massachusetts when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

First Amendment

The First Amendment provides the following rights:

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 protects private individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech. For instance, there is no First Amendment issue with social media companies selectively banning users from their platform based on their speech. There could be a First Amendment issue if a government entity made a similar type of decision based on speech.

State Laws

Some states, but not Virginia, have offered state legislation that protects employees from being terminated for legal, off-duty speech that does not conflict with the employers business-related interests.

States of note that offer this minimal protection include California, New York, Colorado, North Dakota and Montana. Even under these laws, it would be relatively easy for an employer to establish that off-duty hate speech interferes with an employers business interests (e.g., boycotts). In short, there is no true legal protection for hate speech for private employees in these states.

Recent Issues Relating to the Charlottesville Tragedy

These issues have arisen principally as a result of the identification of far-right protesters by various social media groups that have identified hate-speech protesters and then contacted their employers, schools, and friends.

The principal group that has engaged in this tactic is the Twitter account, YesYoureRacist. The group has apparently had success in convincing employers to terminate employees based on their participation in the Charlottesville protest.

Obviously, employers would much rather terminate an employee involved in free speech than face the consequences of a boycott. Can they do so? Yes, they can. Why? Because the First Amendment protects the right of people engaging in hate speech, but it also protects their employers who do not wish to be associated with them.

As such, First Amendment rights go both ways. Free speech protects the ability of citizens to speak and engage in other forms of hate speech without the government banning it. However, it does not protect individuals who engage in hate speech from the consequences of their actions. In other words, there should be no misconception that the Constitution provides a First Amendment right to engage in hate speech and not suffer the potential consequences of being fired for that very speech.

If you need assistance with an employment issue, please contact our office at 703-668-0070 or at http://www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at http://www.facebook.com/BerryBerryPllc.

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Legal Insider: Does the First Amendment Protect Hate Speech and Your Job? - ARL now

The hateful signs and speech of the infamous Westboro Baptist Church have become synonymous with soldiers funerals.

As deplorable as their message is, it is protected under the First Amendment and must remain so.

In that vein, the Eighth Circuit Court of Appeals struck an appropriate balance in upholding Nebraskas funeral picketing law as constitutional in a ruling released Friday morning. The 500-foot buffer allows funeral-goers space to grieve while not infringing upon protesters right to free speech.

Even the churchs despicable rhetoric merits protection. The First Amendment makes no distinction between popular speech productive to society and speech that is abhorrent. Celebrating the deaths of soldiers as some twisted sign that God is punishing the United States for tolerating homosexuality is certainly the latter.

The case that came before the court centered on the 2011 funeral of Navy SEAL Caleb Nelson in Omaha. There, Westboro members were still allowed to picket and share signs that read God Hates Fags with passersby. Nelsons family and friends, meanwhile, could grieve without being forced to consume Westboros venom as should be the case.

As Judge Bobby Shepherd wrote in the opinion: The First Amendment guarantees free speech, not forced listeners.

"This law strikes the appropriate balance between First Amendment free speech rights and the rights of grieving families to bury their loved ones in peace," Nebraska Attorney General Doug Peterson said in a release after the ruling.

Though first written more than 230 years ago, the First Amendment remains under a microscope for interpretation in the present era. The boundaries of speech and expression are always being pushed by a new group, aiming to win over hearts and minds, regardless of the content of that message even if its one we wish could be silenced.

Part of the irony of Westboros ongoing crusade to parlay the deaths of soldiers into a megaphone for the churchs message of hate is that the freedoms for which these men and women fought and died still protect Westboros right to spread its vile opinions.

Judges and attorneys constantly have to take into consideration speech and dissemination the Founding Fathers never would have dreamed of seeing and few entities are more responsible for that evolution than Westboro. After all, the churchs success in a previous court case invalidated Nebraskas previous 300-foot buffer, which was replaced by the 500-foot limit upheld this week by the courts.

The outcome of Fridays ruling was the best of both worlds preserving families chance to grieve in peace without restricting Westboros ability to deliver its appalling message.

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Editorial, 8/13: Court strikes right balance on Westboro ruling - Lincoln Journal Star

Of the harrowing images televised nationwide from Saturdays white nationalist demonstration in Charlottesville, one of the more chilling sights, amid hours of raging hatred and mayhem, was of camo-clad militiamen on the streets, girded for combat in tactical vests and toting military-style semiautomatic rifles.

Photos and video of the heavily armed cadre a relatively small force commanded by a 45-year-old machinist and long-ago Navy veteran from western Pennsylvania spread rapidly on social media, raising fears the clash of hundreds of neo-Nazis and counterprotesters might end in a bloodbath.

The show of strength was about allegiance ... to the Constitution, particularly the First Amendment, said Christian Yingling, leader of the Pennsylvania Light Foot Militia. He said he and his troops convoyed in to Charlottesville early Saturday to defend free speech by maintaining civic order so everyone present could voice an opinion, regardless of their views.

The fact that no shots were fired, Yingling said, was a testament to the discipline of the 32 brave souls serving under me during this particular operation. In a telephone interview Sunday, he sought to dispel the absurd idea in the publics mind that his group of patriots was allied with or sympathetic to the white nationalists.

Many militia units in the Mid-Atlantic and Northeast have mutual defense agreements, Yingling said. Because he has overseen several militia responses at contentious gatherings in recent months helping keep the peace at right-wing public events in Boston; in Gettysburg and Harrisburg, Pa.; and at an April 29 rally in Harrisburg for President Trump Yingling said the commander of a Virginia militia asked him to organize and take tactical command of the Charlottesville operation.

He had never handled anything like this, Yingling said. And given the volatility of the event, it was not a good place to start.

When his group arrived in Charlottesville, we put our own beliefs off to the side, Yingling said. Not one of my people said a word. They were given specific orders to remain quiet the entire time we were there.... Our mission was to help people exercise their First Amendment rights without being physically assaulted.

He added: It was a resounding success until we were just so drastically outnumbered that we couldnt stop the craziness. It was nothing short of horrifying.

In the interview and in a Facebook Live monologue Sunday, Yingling detailed why the militia members participated, how he went about organizing their appearance, and how his group was received which he said was not with much welcome.

Jacka---s, was how he described both sides, meaning the white nationalists, who billed the gathering as Unite the Right, and the counterprotesters, many marching under the banner of Antifa, for anti-fascist. Yingling also criticized police, saying that officers were poorly prepared for the violence and not assertive enough in combating it and that they should have enlisted the militiamen to help prevent the mayhem.

Instead, about five hours after Yingling and his platoon arrived at 7:30a.m., they were ordered by police to leave the area, he said. By 1:42p.m. when a man reputed to be a neo-Nazi adherent allegedly drove his car intentionally through a crowded pedestrian mall and into a sedan, killing a 32-year-old woman and injuring 19 others the militiamen were far from Charlottesville, headed back to their encampment 50 miles northeast of the city, Yingling said.

He said several of his troops were battered and bloodied, having been attacked by people on both sides of the demonstration, yet they did not retaliate.

He said he does not know the suspect in the car killing, James Alex Fields, 20, of Ohio, or any of the white nationalists involved in Saturdays demonstration.

Virginias secretary of public safety, Brian Moran, rejected the assertion that police were ill-equipped to handle Saturdays unrest. To say we were unprepared or inexperienced is absolutely wrong, Moran declared Sunday, adding, We unequivocally acted at the right time and with the appropriate response.

He said: The fighting in the street was sporadic. But soon after it started, we began to have conversations about when to go in. The concern was that the fighting was in the middle of the crowd and that if we went in there, we would lose formation, lose contact. We would be putting the public and law enforcement in jeopardy.

Saturday marked the first time in 28 years the Virginia National Guard was used to help quell a civil disturbance. The militia showed up with long rifles, and we were concerned about that in the mix, Moran said. They seemed like they werent there to cause trouble, but it was a concern to have rifles of that kind in that environment.

Authorities also were worried that Yingling who was carrying a Sig Sauer AR-556 semiautomatic weapon and his troops would be mistaken for National Guard members by the public, Moran said.

Yingling called the weapons one hell of a visual deterrent to would-be attackers from either side. Although the weapons magazines were fully loaded, he said, the days standard procedure was that anyone who was carrying a long gun was not to have a round in the chamber. Now, our sidearms are generally chambered and ready to go.

The Pennsylvania Light Foot Militia is one of several Light Foot Militia outfits in states nationwide. In addition to having overall command of units in Pennsylvania, Yingling said, he is the leader of his home unit, the Light Foot Militia Laurel Highlands Ghost Company, based near his home in New Derry, Pa., about 50 miles east of Pittsburgh. The Ghost Company has about a dozen members, he said.

The Southern Poverty Law Center, a nonprofit watchdog group that monitors extremist organizations, classifies 276 militias in the country as antigovernment groups, meaning they generally define themselves as opposed to the New World Order, engage in groundless conspiracy theorizing, or advocate or adhere to extreme antigovernment doctrines.

The Pennsylvania Light Foot Militia is on the list, as are Light Foot Militia units in South Carolina, Utah, Wisconsin, Idaho, Nevada and Oregon. But the SPLC points out that inclusion on its list does not imply that the groups themselves advocate or engage in violence or other criminal activity, or are racist.

Yingling said he abhors racism and that his company, which usually trains in the woods once or twice a month, is open to prospective members of all races and creeds, although its active roster is entirely white.

A Navy veteran of Operation Desert Storm, Yingling said he was an aviation machinists mate for three years before leaving the service in 1993 as a petty officer third class, meaning he was four rungs up the enlisted ranks.

I joined the military to avoid the addictive lifestyle of my parents, he wrote in a Facebook post. I was raised in a VERY dysfunctional, abusive home. The military gave me the structure I needed. After his discharge, however, I quickly fell right into the lifestyle I had known all my life with my parents. I quit going to church, I started using drugs and alcohol, heavily becoming addicted to both. It started a... downward spiral which led to an eventual suicide attempt.

Then, in 2008, President Barack Obama was elected. Yingling said he was drawn then to right-wing, anti-government extremism.

I left my old addictive lifestyle behind and traded it for the lifestyle of a patriot, he wrote. I had found my calling as a militiaman. I founded The Westmoreland County Militia, Regulators 1st Battalion with two fellow patriots. He later left the unit and formed the Laurel Highlands Ghost Company.

No, I dont think the government, as a whole, is out to get us, he said in the interview, but a lot of people in society are self-absorbed. They dont get involved with the Constitution and defending the freedoms that it gives us. We need to defend those freedoms for everyone, on all sides of the political debate or eventually well lose them.

About a month ago, when he learned the Unite the Right event was being planned, Yingling said, I, like most militia commanders, did not want to touch it with a 10-foot pole for fear of being wrongly perceived as an ally of white supremacists. But after talking it over with a fellow Light Foot commander, in Upstate New York, he decided he had a duty to defend the right of free speech on the streets of Charlottesville.

Through Facebook and various militia chat rooms, he said, he recruited militia members from various East Coast units and organized a rendezvous Friday night at a farm in Unionville, Va. He said he was angered and embarrassed that only 32people showed up. Many others, he said, were afraid of being publicly branded as racists.

We knew what we were walking into, he said on Facebook Live. We knew what the results were going to be. And yet we walked in anyway. We werent afraid. And we didnt give a good damn about our image or about what anybody thought about us. And I still dont.

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Militiamen came to Charlottesville as neutral First Amendment protectors, commander says - Washington Post