Congress Shall Make No Law: Religion, Speech, Press, and Limits

The First Amendment to the United States Constitution opens with the words “Congress shall make no law,” and that command is the foundation of free expression in American law. The full sentence reads: “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.”¹ Forty-five words, five rights: religion, speech, press, assembly, and petition. The clause restricts what the government can do, not what private people or companies can do, and even against the government it has a handful of well-defined exceptions. What follows is a plain reading of who the clause binds, what each of its five rights actually covers, and the categories of speech that fall outside its protection.

Who the Clause Binds

As originally ratified in 1791, the First Amendment restrained only the federal government. States were free to pass their own laws on speech and religion. That changed with the Fourteenth Amendment in 1868, which forbids any state from depriving a person of “life, liberty, or property, without due process of law.”² Through a process the Supreme Court calls selective incorporation, the Due Process Clause was read to carry the Bill of Rights along with it, applying those protections against the states.³ For the First Amendment specifically, the turning point was Gitlow v. New York (1925), where the Court recognized free speech and free press as “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”⁴ Today a city council, a state legislature, and a public university are all bound by the same First Amendment restrictions that apply to Congress.

Private Actors Are Not Bound

This is the point most often misunderstood. The First Amendment restricts government action. It generally does not reach private employers, private schools, social media platforms, shopping malls, or private clubs.⁵ A private employer can fire you for what you posted last night. A platform can take down your account. A mall can ask you to leave for handing out leaflets. None of that is a First Amendment violation, because none of those actors are the government.

There is a narrow exception when a private entity performs a traditional public function, when the government compels a specific private action, or when the government acts jointly with the private entity.⁵ Those situations are rare. In Moody v. NetChoice (2024), the Supreme Court went the other direction and treated platform content moderation itself as protected editorial choice, writing that platforms “include and exclude, organize and prioritize — and in making millions of those decisions each day, produce their own distinctive compilations of expression.”⁶ The Court vacated Florida and Texas laws that tried to restrict how platforms moderate content, leaving platforms with broad discretion over what appears on their sites.

Freedom of Religion

The First Amendment handles religion through two clauses that work together. The Establishment Clause bars the government from sponsoring, favoring, or financing religion. The Free Exercise Clause protects people from government interference with their religious practice.⁷ The combined goal is government neutrality: it cannot promote a faith, and it cannot suppress one.

The Establishment Clause

The Establishment Clause prevents the government from setting up an official religion, preferring one faith over others, or using tax dollars to advance religious doctrine in public settings.⁸ For decades, courts used the Lemon test to evaluate whether a government action crossed the line, asking about secular purpose, primary effect, and government entanglement with religion. In Kennedy v. Bremerton School District (2022), the Supreme Court effectively retired that framework and held that Establishment Clause questions must be answered by “reference to historical practices and understandings.”⁹ Under the new approach, courts look at whether the challenged action fits within historical traditions of religious accommodation the Founders would have recognized.

The Free Exercise Clause

The Free Exercise Clause protects rituals, religious attire, and organizing your life around your beliefs, free from government punishment.⁸ Conflicts usually arise when a general law on employment, healthcare, or land use collides with a specific religious practice.

Congress reinforced this protection with the Religious Freedom Restoration Act (RFRA). Under RFRA, the federal government may not substantially burden a person’s exercise of religion unless it demonstrates both a compelling governmental interest and that the burden is the least restrictive means of furthering that interest.¹⁰ Many states have passed their own versions.

Religious organizations also enjoy a special employment carve-out. Under the ministerial exception, recognized in Hosanna-Tabor v. EEOC (2012) and expanded in Our Lady of Guadalupe School v. Morrissey-Berru (2020), religious institutions have broad freedom to hire and fire employees who perform religious functions, and courts will not second-guess those decisions even when a termination would otherwise violate anti-discrimination law.

Freedom of Speech

Speech protection under the First Amendment reaches beyond spoken words to cover writing, art, and conduct that communicates a clear message. The bedrock principle is content neutrality: the government cannot suppress a viewpoint because it is unpopular, offensive, or inconvenient.

Content-Based Versus Content-Neutral Restrictions

Courts draw a sharp line between laws that target what you say and laws that regulate how, when, or where you say it. A content-based law, one that singles out a particular subject or viewpoint, is presumed unconstitutional and faces strict scrutiny: the government must prove it serves a compelling interest and is narrowly tailored to that interest.¹¹ Most fail.

A content-neutral law faces a lower bar. It must further a substantial government interest, be unrelated to suppressing expression, and burden speech no more than necessary.¹¹ Noise ordinances and parade permit rules are typical examples that usually survive review.

Symbolic Speech

Actions that communicate a message can receive the same protection as words. In Tinker v. Des Moines (1969), the Supreme Court held that students wearing black armbands to protest the Vietnam War were engaged in protected expression, declaring that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”¹² Twenty years later, in Texas v. Johnson (1989), the Court extended the principle to flag burning, holding that “the Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.”¹³

Commercial Speech

Advertising and other speech that proposes a commercial transaction is protected, though less strongly than political or artistic expression. Courts use the Central Hudson test: the government may freely restrict commercial speech that is misleading or promotes illegal activity, but for speech that is neither misleading nor unlawful, the government must show that the restriction serves a substantial interest, directly advances that interest, and is no more extensive than necessary.¹⁴ Deceptive advertising receives no First Amendment protection at all, and the Federal Trade Commission enforces truthfulness and substantiation requirements across media.¹⁵

Freedom of the Press

The Press Clause protects the media’s ability to report on government activity without state-sponsored censorship. Its most important feature is the prohibition against prior restraint, meaning the government stopping a publication before it reaches the public. The Supreme Court has held that any such system “comes to this Court bearing a heavy presumption against its constitutional validity,” with the government carrying “a heavy burden of showing justification for the imposition of such a restraint.”¹⁶ In the 1971 Pentagon Papers case, the Court ruled that the government had not met that burden when it tried to block the New York Times and Washington Post from publishing classified material about the Vietnam War. Courts have recognized only narrow situations, like exposure of active military operations or obscenity, where prior restraint might be justified. Outside those, the government has to wait until after publication and pursue remedies through the ordinary legal system.

Press freedom protects publication; it does not exempt journalists from general laws while gathering information. Reporters who trespass, record without required consent, or hack into private systems face the same consequences as anyone else. There is currently no federal shield law protecting journalists from being compelled to reveal confidential sources in court, though most states have enacted their own shield laws of varying scope.

Assembly and Petition

The First Amendment protects collective action alongside individual expression. The right to assemble covers organizing for political and social causes in public spaces like parks, sidewalks, and government buildings. The right to petition covers lobbying officials, filing lawsuits, and submitting formal complaints about government action.¹

Assembly is not a blank check. The government can impose reasonable time, place, and manner restrictions on protests and demonstrations, as long as those rules are content-neutral and leave open alternative channels of communication. A city can require a permit for a large march to coordinate traffic and emergency services. It cannot deny permits based on the organizers’ political message. The Supreme Court upheld this framework in Cox v. New Hampshire, allowing governments to regulate parades for public safety without restricting content.¹⁷

Speech the First Amendment Does Not Protect

“Congress shall make no law” is sweeping, but it has never been treated as absolute. The Supreme Court has identified several narrow categories of speech that fall outside its protection, where the government can regulate without meeting the usual strict scrutiny standard. Courts keep these categories tightly defined, because vague speech restrictions chill legitimate expression.

Incitement to Imminent Lawless Action

Under Brandenburg v. Ohio (1969), the government cannot punish advocacy of illegal conduct unless the speech is both directed at producing imminent lawless action and likely to produce it.¹⁸ Both elements must be present. Abstract calls for revolution, heated political rhetoric, and generalized anger at the government are protected. What crosses the line is a speaker whipping up a crowd to commit a specific illegal act now, where the crowd is actually likely to do it.

True Threats

Statements communicating a serious intention to commit violence against a specific person or group can be punished as true threats. The Supreme Court has explained that these fall outside the First Amendment because of the fear they generate, the disruption that fear causes, and the possibility the violence will actually happen.¹⁹ In Counterman v. Colorado (2023), the Court clarified the required mental state: the government must prove the speaker was at least reckless, meaning they consciously disregarded a substantial risk that their statements would be perceived as threats of violence.²⁰ Accidentally frightening someone with an ill-chosen word is not enough.

Fighting Words

In Chaplinsky v. New Hampshire (1942), the Supreme Court recognized that certain words “by their very utterance, inflict injury or tend to incite an immediate breach of the peace” and carry so little communicative value that restricting them raises no constitutional problem.²¹ The category is extremely narrow in practice. Courts have not expanded it since Chaplinsky, and many laws invoking the fighting-words label have been struck down as too broad or too vague.²²

Obscenity

Obscene material has no First Amendment protection, but the legal definition is deliberately narrow. Under the three-part Miller test, material is obscene only if the average person applying community standards would find it appeals to a prurient interest, it depicts sexual conduct in a patently offensive way, and it lacks serious literary, artistic, political, or scientific value.²³ All three prongs must be met. Material with any serious value is protected no matter how explicit.

Defamation

False statements of fact that damage someone’s reputation fall outside the First Amendment. A defamation plaintiff must show the defendant made a false factual statement about them, communicated it to others, and caused injury. For statements about public officials and public figures, the First Amendment adds a critical layer: under New York Times Co. v. Sullivan (1964), the plaintiff must prove the statement was made with “actual malice,” meaning the speaker knew it was false or acted with reckless disregard for its truth.²⁴ The heightened standard exists to give criticism of those in power breathing room; an honest mistake about a politician’s record, even a careless one, cannot support a verdict. For private individuals, the standard is lower and varies by jurisdiction. Truth is always a complete defense.

A Note on Government Employees

People who work for the government sit in an unusual position: their employer is the entity the Constitution restricts. The Supreme Court balances the competing interests under the Pickering test, weighing the employee’s interest in speaking on matters of public concern against the government’s interest in operating its services efficiently. There is one hard cutoff. Under Garcetti v. Ceballos (2006), government employees receive no First Amendment protection when they make statements as part of their official duties.²⁵ Speaking off the clock as a private citizen on public issues, the Pickering balance applies instead.

1
Congress.gov. U.S. Constitution – First Amendment
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Congress.gov. U.S. Constitution – Fourteenth Amendment
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Congress.gov. Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights
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Justia. Gitlow v. New York
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Congress.gov. Intro.9.2.4 Murthy v. Missouri: The First Amendment and Government
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Supreme Court of the United States. Moody v. NetChoice, LLC (2024)
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Congress.gov. Amdt1.2.1 Overview of the Religion Clauses (Establishment and Free Exercise Clauses)
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United States Courts. First Amendment and Religion
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Supreme Court of the United States. Kennedy v. Bremerton School District (2022)
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Office of the Law Revision Counsel. 42 USC Ch. 21B Religious Freedom Restoration
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Congress.gov. Overview of Content-Based and Content-Neutral Regulation of Speech
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United States Courts. Facts and Case Summary – Tinker v. Des Moines
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Justia. Texas v. Johnson
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Congress.gov. Central Hudson Test and Current Doctrine
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Federal Trade Commission. Truth In Advertising
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Justia. New York Times Co. v. United States
17
United States Courts. Facts and Case Summary: Cox v. New Hampshire
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Congress.gov. Amdt1.7.5.4 Incitement Current Doctrine
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Congress.gov. True Threats
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Supreme Court of the United States. Counterman v. Colorado (2023)
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Justia. Chaplinsky v. New Hampshire
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Congress.gov. Amdt1.7.5.5 Fighting Words
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United States Department of Justice. Citizens Guide to U.S. Federal Law on Obscenity
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Justia. New York Times Co. v. Sullivan
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Congress.gov. Pickering Balancing Test for Government Employee Speech