And today, I'm learning more about the First Amendment

to the U.S. Constitution.

The First Amendment is one of the most important amendments

to the Constitution, if not the most important.

It 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."

To learn more about the First Amendment,

I talked to two experts.

Erwin Chemerinsky is the Jesse H. Choper

Distinguished Professor of Law

and Dean of Berkeley Law.

Michael McConnell is the Director

of the Constitutional Law Center at Stanford Law School

and a Senior Fellow at the Hoover Institution.

Professor Chemerinsky, there's a lot going on

in the First Amendment.

Can you tell us a little bit more about why the framers

chose to protect these rights in particular?

- [Erwin] The historical background of the First Amendment

of the Constitution shows why the framers

wanted to be sure that all of the liberties

in the First Amendment were safeguarded.

Let's focus on freedom of speech and freedom of the press.

In England, there was after the printing press developed

licensing so that anyone who wanted to be able

to publish anything needed a license from the government.

Such licensing was seen to be inconsistent

with freedom of speech; freedom of the press;

for that matter: freedom of thought, freedom of inquiry.

- [Kim] Interesting.

Okay, so there are a lot of essential freedoms

that are packed into this First Amendment,

so much that it's almost amazing that we're gonna attempt

to talk about them all in one video.

But if we dial into freedom of speech,

Professor McConnell, what is freedom of speech?

Does that encompass some things and not others?

- [Michael] Freedom of speech was actually less important

to the framers than the freedom with which it was coupled

which is the freedom of the press.

And the reason for this is that speech

that can reach large audiences is much more important

to the individual, but also dangerous to the state

than mere speech.

When you speak, only those people within hearing range

can hear you.

But when you are able to use Gutenberg's

fantastic new technology to publish your sentiments

and distribute them widely,

maybe even over the entire country or across the Atlantic

and reaching hundreds of thousands of people,

now that is powerful.

And no wonder.

So you think about how the American Revolution was won.

This required spreading the word.

It required gaining converts and telling people

what their grievances were.

To a very great extent, this was done

through the mechanism of the printing press.

- [Erwin] When you ask the question of

what's freedom of speech, there's implicit within it

the issue of: what do we mean by speech.

Ultimately, the answer to your question is

the First Amendment protecting speech broadly safeguards

a right to express one's ideas.

But it's not absolute.

The government can restrict expression

if there's a compelling interest.

- [Kim] Interesting, can you say more about that?

- [Erwin] The Supreme Court always has been clear

that freedom of speech is not absolute.

The court has said that there are certain categories

of speech that are unprotected by the First Amendment.

Incitement of illegal activity is a category

of unprotected speech.

The court has said this requires showing that

the speech was directed at causing

imminent illegal activity,

and there was substantial likelihood

of imminent illegal activity.

Another example: obscenity is unprotected

by the First Amendment.

The court struggled for years trying to define

what is obscenity.

Maybe the low point in that is

when Justice Potter Stewart said,

"I can't define it, but I know it when I see it."

There are also these categories of speech

where the government can prohibit,

even punish the expression.

- [Michael] That's where most of the limitations

on the freedom of speech and of the press come from

is in order to make sure that we don't

hurt other people's rights through the use of our own.

So an example of that.

The government can prohibit speech

which incites violence against someone.

So if you're making a speech and calling upon the crowd

to attack somebody's house or their person,

that can be punished and prevented

as an incitement to violence.

And you can see how that follows from the logical idea

of freedom of speech being a natural right

and therefore limited by the rights of other people.

- [Kim] So let's turn our attention

toward the freedom of religion part of the First Amendment.

So the first thing that the amendment says

is about establishment.

So what does this establishment clause prevent?

- [Erwin] The language of the First Amendment is important.

It says that "Congress may make no law

"respecting the establishment of religion."

Since 1947, the Supreme Court has said that

that also applies to state and local governments.

And the Supreme Court has said this means

that the government cannot act with the purpose

of advancing religion.

- [Michael] To the founders,

this was a very clear legal concept.

Namely, it was the established Church of England.

In the statute books, in the law,

the Church of England was referred to as

and I quote "the Church by law established."

And what did it mean to be established?

First of all, it meant that the doctrines of the church,

the 39 Articles of Faith of the Church of England

were voted upon by Parliament.

So the doctrines, the liturgy, the text

were all adopted by law.

The established church was the government's church.

And it could be used, and from time to time was used,

as an instrument of government

or as an instrument of politics.

And this is a way in which the government

is able to have a powerful influence on the way

in which values and opinions are inculcated.

It's one of the most important ideas

of the established church, especially in the 18th century,

was to teach that there's actually a religious obligation

to obey the law and to recognize the king

as a supreme leader in matters of both church and state.

And the framers' experience with this

was extremely powerful.

- [Erwin] That's because the framers were aware

of the religious persecution

that had gone on in other countries.

They were aware of the evils that occur

when the government becomes aligned

with a particular religion.

- [Michael] The principal reason why many of the colonists

had come to these shores to begin with

was to escape the oppressions of the established

Church of England back home and to come to a place

where they would be able to exercise

the freedom of religion for themselves.

And the main opponents of the established church

were not anti-Christian or anti-religious people.

They were the most religious people.

And their view was the government should

stay out of our church, that we will decide

what we believe for ourselves.

We will control our own church.

We will write our own liturgy.

We'll decide what version of the Bible

we're going to use.

We'll choose our own ministers.

Thank you very much, government, stay out of it.

Leave us free to practice our religion

without having this kind of an establishment.

- [Erwin] So for instance, a county in Kentucky

required that the 10 Commandments be posted

in all county buildings.

The Supreme Court said the 10 Commandments

are a religious scripture.

There's no secular purpose for having the 10 Commandments

posted in county buildings.

The court declared it unconstitutional.

The Supreme Court has said the government can't act

where the primary effect is to advance

or to inhibit religion.

So for example, there can't be prayer in public schools.

Even a voluntary prayer in public schools in impermissible.

Because the court has said that the primary effect

of having prayer in public schools is to advance religion.

The court has explained that children will inevitably

feel pressured to participate.

And this coercion violates the Constitution.

- [Kim] So the First Amendment then prevents

that kind of intermingling

of the government and the church.

This is I guess the key idea of separation

between church and state.

But it also says that the "Congress shall make no law

"prohibiting the free exercise" of religion.

So what does that mean?

- [Michael] Free exercise of religion was the right

to practice your own religion.

It didn't keep the government from setting up a church,

but it did keep the government

from requiring you to attend that church,

maybe even to contribute to the church,

but also kept the government from preventing you

from worshiping elsewhere.

So the establishment clause by and large

prevents the government from forcing people

to participate in religion.

And the free exercise clause by and large

prohibits the government from preventing people

from practicing their religion.

Those two things work together

to enable everyone to worship God

in accordance with their own conscience.

- [Kim] Interesting.

So we mentioned a little bit about freedom of the press.

But there are two other aspects of the First Amendment:

"the right of the people peaceably to assemble,

"and to petition the government

"for a redress of grievances."

So what is included with the right to peaceably assemble?

Are there any situations where that might be restricted?

- [Erwin] The Supreme Court has said

that under freedom of speech, there's a right

to use government property for speech purposes.

This is also something which entails

the freedom of assembly.

And the Supreme Court has said that

there's certain government properties that the government

is required to make available for speech:

sidewalks and parks.

There's other places where the government

has more latitude to regulating speech:

school facilities evenings and weekends.

There's places where the government

can close entirely to speech:

military bases, areas outside prisons and jails.

All of these cases have been litigated

under freedom of assembly.

Some of the earlier cases explicitly mentioned

freedom of assembly.

But subsequent cases combined freedom of assembly

into the protection of freedom of speech.

- [Kim] I guess that makes sense.

But what about something like a march, for example,

that might say block traffic?

That's perhaps a clear case when there is this tension

between freedom of speech and assembly

and say public safety if they're blocking say an ambulance.

How do you resolve that tension?

- [Michael] Sometime in roughly the 1970s,