20 Facts About the First Amendment You Should Know

While almost all Americans have heard of the First Amendment and consider it vital, there are many facts about the First Amendment that most people don’t know.

Fewer than 10% of Americans can correctly name the five freedoms it protects: religion, speech, the press, assembly and petition. And most people don’t know the fact that the First Amendment protects these rights only from infringement by the government, not from private people or companies.

So, here are some more facts about the First Amendment.

Discover 20 facts about the First Amendment that most people don't know

1. The First Amendment was originally the third

There is a saying that the First Amendment is first for a reason. That reason is not, as the saying implies, that it was considered the most important when it was adopted. The fact is that the originally proposed first and second amendments were not ratified. The amendment in the third slot then moved up to number one.

The first proposed but discarded amendment set out a formula for the number of members in the U.S. House of Representatives. The second determined when Congress could adjust its pay, and it was eventually ratified in 1992 as the 27th Amendment.

2. The first draft of the First Amendment was more than twice as long as the final 45 words

The five freedoms of religion, speech, the press, assembly and petition were each protected in the original draft of the First Amendment, but in a wordier way than the final, ratified version.

The draft text first read:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”

This draft, for example, provides more detail about the “freedom of speech” described in the First Amendment, mentioning the “right to speak, to write, or to publish.” The courts have interpreted freedom of speech to mean speaking, writing, and publishing though those words are not explicitly included in the First Amendment.

3. James Madison was the main author of the First Amendment

As a Congressman from Virginia, James Madison was an advocate for his state’s law protecting religious freedom. But as the new U.S. Constitution came together, he wasn’t convinced of the need for a Bill of Rights as proposed by another Virginian, George Mason. Madison and others argued that spelling out the people’s protected rights would limit the rights protected to only those specifically named and lead to government abuses.

But later, Madison and others became convinced of the need for the Bill of Rights, in part because it looked like the only way enough states would ratify the new Constitution.

Madison became the leading advocate in Congress for the amendments, sorting proposals from the states and drafting 19 proposed amendments. The House of Representatives approved 17, and the Senate approved 12 of those for the states’ review, including the 10 that became the Bill of Rights.

4. Virginia’s Declaration of Rights influenced the language of the First Amendment

George Mason, the Virginian who had first proposed the idea of a Bill of Rights to the U.S. Constitution, wasn’t new to ensuring people’s rights were protected by law.

Before the First Amendment and even before the United States existed, the colonies each had their own governing documents. In June 1776, Virginia adopted a colonial declaration of rights. Drafted by Mason, the document named several fundamental freedoms that later were included in the First Amendment, including religion and the press.

5. The First Amendment did not exist for the first 15 years after the United States was formed as a country

With the Declaration of Independence, the U.S. was born on July 4, 1776.

At that time, the new nation was a loose union of 13 colonies. After 10 years of following the Articles of Confederation, the young Congress set out to update this first constitution and created a whole new document. The Constitution as we know it today was finalized on Sept. 17, 1787, and went into effect in 1790 when it was ratified by the states.

This document did not include the First Amendment, but a strong contingent of state delegates had asked for a Bill of Rights to be added to the Constitution as a condition of accepting it. That happened in 1791, just after the nation’s 15th birthday.

6. The First Amendment was ratified on Dec. 15, 1791

Congress passed a set of 12 amendments to the Constitution (including the 10 amendments that today make up the Bill of Rights) on Sept. 25, 1789. It sent these amendments to the states for consideration. On Dec. 15 just over two years later, Virginia became the 10th state to ratify 10 of the 12 proposals, putting the First Amendment into effect. Sept. 25 is now known as First Amendment Day and Dec. 15 as Bill of Rights Day.

7. It took until 1821 for the U.S. Supreme Court to mention the First Amendment in a case

The fact that, for 30 years after the First Amendment was ratified, its freedoms did not come up in any Supreme Court case is not well known. But it was not until 1821 when, in a case about contempt of Congress and bribery, that a Supreme Court ruling mentioned the fundamental freedoms. Though largely an aside and not key to the case, the court’s ruling in Anderson v. Dunn did mention the freedoms of speech and the press.

8. In 1931, the Supreme Court said that speech can mean more than literal spoken words

Today, freedom of speech is understood to protect the words we say, the flags we fly and many other kinds of expression.

In Stromberg v. California, the Supreme Court overturned a woman’s conviction under a California law criminalizing flying a red flag, which was associated with communism.

The court for the first time ruled that banning a “sign, symbol, or emblem” was banning speech, even if the expression wasn’t verbal.

9. Movies didn’t get free speech protection from the Supreme Court until 1952

Almost as soon as moving pictures existed, there were calls to censor films. In 1915, the Supreme Court paved the way for movie censorship by ruling that filmmaking was a commercial industry, not free speech protected by the First Amendment.

A controversial Italian film called “The Miracle” changed all that more than 30 years later. Movies had to be licensed by state censorship boards, and after receiving letters of complaint calling “The Miracle” sacrilegious, New York revoked its license, effectively banning the film.

The distributor sued, and the court this time agreed that the First Amendment prevented banning movies.

10. The First Amendment didn’t fully apply to all levels of government until 1963

In the early U.S., the fact that the First Amendment limited only the federal government was widely understood. State governments were free to make laws that did not conform to it. But in 1868, the Fourteenth Amendment was ratified. It limited the states — and government at every level — from violating people’s constitutional rights, too.

In a series of Supreme Court cases between 1925 and 1963, the court specifically ruled on issues of states infringing on First Amendment freedoms. These cases “incorporated” each First Amendment freedom, officially stating that the freedoms of religion, speech, the press, assembly and petition cannot be infringed by any level of government.

11. A famous Supreme Court decision in 1962 did not ban prayer from public schools

The Supreme Court said in 1962 in Engel v. Vitale that school-sponsored prayers in public schools violate the First Amendment.

The ruling created a great deal of confusion about a key fact about the First Amendment because many people thought that the court was banning all prayer, by anyone, in public schools. But it was not.

In fact, the First Amendment protects religious exercise, including students praying at school, as long as they are not disrupting others from learning. Teachers can also pray privately as long as they do not pressure students to join them. The court never said that this kind of prayer was banned.

What the court did say was that public schools are government-run, and the First Amendment’s establishment clause prevents government from endorsing or favoring any religion. So public school teachers and administrators cannot require, pressure, coerce or lead students into praying.

The ruling did not ban prayer in school; it made schools more open to students’ own prayers of many different types and religions.

12. The Supreme Court did not strike down a federal law for violating the First Amendment until 1965

Though the Supreme Court ruled on cases about possible First Amendment violations for most of its history – even ruling that enforcing laws against certain people in certain situations violated the First Amendment — it wasn’t until 175 years after the First Amendment was ratified that the court overturned on First Amendment grounds a federal law altogether.

During the 1950s and 1960s, fear of communism grew. A 1964 law required the U.S. Postal Service to set aside any international mail that was potentially communist propaganda and require the addressee to confirm they wanted the material before it was delivered.

This enshrined in law a policy that had been in practice (sometimes without ever notifying addressees of their mail) for years.

The court said in Lamont v. Postmaster General that enforcing the law was likely to deter speech about certain content, in violation of the First Amendment, and struck down the law as unconstitutional.

13. Many key court cases that helped define and defend First Amendment religious freedom protections were brought by Jehovah’s Witnesses

Many of these were during the 1940s, when the group won 14 of its 19 First Amendment cases before the Supreme Court.

Two of the best-known cases were related to schools requiring the Pledge of Allegiance. In 1940, the Gobitas family lost its case claiming the requirement violated religious freedom rights. But three years later, in a case brought by the Barnette family, the court reversed that ruling and said that freedom of speech protects the right not to speak.

14. Some state and federal laws provide even more protection for the rights listed in the First Amendment in instances where the First Amendment does not apply

The First Amendment protects the five freedoms from interference by the government – federal, state or local. It does not apply to private people and businesses. But that doesn’t mean companies always have free rein to limit people’s freedoms. Sometimes, laws other than the First Amendment offer protection.

One big example is the 1964 Civil Rights Act. One section of this law, Title VII, states that private companies cannot discriminate against employees or potential employees based on their religion. While they are not always required to accommodate religious needs, they cannot fire or refuse to hire someone only due to their religious affiliation.

The federal government and most states also have specific religious freedom laws that protect religious exercise in other circumstances where the First Amendment does not apply or set an even higher bar to limiting religious freedom than the courts have ruled the First Amendment requires.

The First Amendment does not apply to private schools. But in California, a state law says that private schools must protect student speech, just like the First Amendment requires public schools to do.

Another example is Section 7 of the National Labor Relations Act, which protects workplace speech that is designed to improve working conditions, speaks for a group of employees rather than just being one person expressing their own views, and is not disruptive or profane.

15. The first free speech Supreme Court ruling to address the internet was in 1997

Almost as soon as the internet existed, laws looked to regulate it. Once such law was the Communications Decency Act, which was passed in 1996 amid fears that children might access inappropriate content on the web.

In a case the court heard twice – once sending it back to lower courts for more review before hearing it again – the court ruled that parts of the act were too vague and threatened the free speech of adults on the internet.

Only one portion of the law remains in effect: Section 230, which shields websites from liability for what users post and which is the subject of controversy today.

16. The Supreme Court has made First Amendment rulings on such everyday items as license plates and beer labels

First Amendment freedoms touch more elements of everyday life — and get scrutiny at the high court — than you might realize.

In 1977, the court heard a case about license plates after a couple covered up a slogan on their New Hampshire plate that they disagreed with. The court said it was unconstitutional to require them to support a specific message or view and allowed them to cover the slogan.

In 1995, the court heard a dispute over beer labels. A federal law banned listing alcohol content on labels, for fear it would cause people to overindulge. But the court struck down the law, allowing the labels visible on beer cans today.

Courts have also heard cases about music lyrics, billboards, comic books and more.

17. The First Amendment is the best known and most valued amendment in the Bill of Rights

Americans may not always know a lot of facts about the First Amendment, but they overwhelmingly know and value that it exists.

Surveys show that when asked about the Bill of Rights, Americans are most likely to name the First Amendment or one of its freedoms, particularly speech, making it the best-known amendment.

It’s also the most valued. A 2022 YouGov survey also found that 57% of respondents said the First Amendment is the most important among the Bill of Rights, compared to 17% who named the Second Amendment.

18. The First Amendment does protect your right to shout “FIRE!” in a crowded theater — unless you do so falsely to cause a panic

One of the most well-known — and misunderstood — facts about the First Amendment is from the saying about shouting “fire” in a crowded theater.

In an opinion in a 1919 case, Schneck v. United States, in which the court upheld an Espionage Act conviction for distributing anti-draft flyers, Supreme Court Justice Oliver Wendell Holmes argued, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The court’s ruling in that case has since been largely overturned in favor of protecting more political speech. But the quote remains among the most cited – usually by people seeking to justify restrictions on speech.

Holmes’ analogy was not just a made-up example. Incidents of people falsely shouting “fire” in halls, theaters and churches, leading to mass panics, had occurred nearly 30 times in the U.S. in the prior 40 years. Seven such incidents were deadly, totaling more than 150 deaths. One, though thankfully with no fatalities, happened just blocks away from Holmes’ house.

This example became common in culture, too. In fact, a lawyer in another case being heard by the Supreme Court at the time also used the analogy in his argument to the court.

As most often quoted today, though, in popular culture and in nearly 300 court opinions since, the saying often erroneously omits the key word “falsely” and adds the word “crowded” as shorthand for the idea of causing a panic.

19. The First Amendment limits the government overall, not typically who has protection for their rights

The First Amendment protects U.S. citizens and, in many cases, noncitizens. It protects people of all ages. It protects people who have formed groups like companies.

The First Amendment puts limits on when and how the government can interfere with the exercise of the five freedoms by anyone in the U.S.

Only in specific cases, and for very good reasons, can the government limit some people’s rights more than others. Some examples include ensuring a safe learning environment in public schools and preventing businesses from fraudulent advertising.

20. Knowing facts about the First Amendment helps you use and defend your freedoms

Many facts about the First Amendment — including the freedoms it protects and when it does or doesn’t apply — are not well known. But knowing facts like these, along with a few facts about the history of these fundamental freedoms, is a great way to understand your rights.

Knowing your rights empowers you to use them, if you choose, and to understand when they may be threatened or violated. Knowing First Amendment facts helps all of us keep the First Amendment strong. That’s a fact about the First Amendment that’s worth knowing — and celebrating!