First Amendment

PLA 2880Activity 8·9 min read

Why it Matters

The First Amendment protects how we speak, protest, publish, pray, and live out our beliefs, but these freedoms are not unlimited. Courts have spent over a century drawing the line between protected expression and legitimate government regulation. In this module you’ll study how courts decide whether a law unfairly restricts speech or religion, why some speech is protected even when it is hateful or unpopular, and when the government can limit expression or religious practice for safety, equality, or public order. These are questions you will encounter in civic life, college debates, and future legal work.

Current Context

Among its June 2026 decisions the Court held 8-1 in Chiles v. Salazar that Colorado’s ban on conversion therapy for minors regulated speech based on viewpoint and violated the First Amendment. Justice Gorsuch wrote for the Court and Justice Jackson dissented, arguing that a state’s restriction on a dangerous therapy practice should not become presumptively unconstitutional merely because the treatment happens through words, a dispute the National Constitution Center’s term review summarizes alongside the term’s other speech rulings. The whole case turned on the threshold classification this activity teaches: once the law counted as viewpoint-based regulation of speech rather than regulation of professional conduct, the level of scrutiny nearly decided the outcome by itself.

Key Concepts

Content Neutrality

The principle that laws restricting speech must not target the ideas expressed. A law aimed at what is said, rather than when, where, or how, triggers the most demanding judicial review.

Levels of Scrutiny

The three tiers of constitutional review, taught here and assumed for the rest of the course: strict scrutiny demands a compelling interest and narrow tailoring, intermediate scrutiny an important interest substantially served, and rational basis only a legitimate interest reasonably served. Content-based speech restrictions and laws targeting religious practice face the strict tier, and generally fail it. Activities 9 and 11 build on this framework rather than reteaching it.

Establishment Clause

The First Amendment provision prohibiting the government from establishing or favoring a religion. Its governing test has shifted dramatically, from the Lemon framework to the historical-practices approach of Kennedy v. Bremerton.

Free Exercise Clause

The provision protecting individuals’ right to practice their religion, within limits. The central modern question, set by Employment Division v. Smith, is what happens when a neutral, generally applicable law burdens religious practice.

Symbolic Speech

Nonverbal expression, like flag burning or armbands, that can be protected under the First Amendment. Tinker and Texas v. Johnson mark how far the protection extends.

Time, Place, and Manner Restrictions

Government rules that regulate how speech occurs without targeting its content. They receive more forgiving review than content-based laws, which is why the neutrality question comes first.

Resources

US Constitution (Constitution Annotated) (Start with the forty-five words of the First Amendment itself; every case below interprets them.)
First Amendment essays, Constitution Annotated (Library of Congress clause-by-clause essays; a primary fact-checking tool for verifying what the AI tells you in Part 1.)
Oyez (Case summaries, decision breakdowns, and oral argument audio for every case on the lists below; a fast first stop for verification.)
Google Scholar (Full opinions for any case you need to confirm in depth.)
Westlaw via the Daytona State library (Authoritative full-text research when you want headnotes and citing references.)

The landmark cases below are your verification targets. Look each one up on Oyez, Google Scholar, or Westlaw as needed.

Free Speech: Schenck v. United States (1919), the “clear and present danger” test; Chaplinsky v. New Hampshire (1942), unprotected “fighting words”; Brandenburg v. Ohio (1969), the “imminent lawless action” test replacing Schenck; Tinker v. Des Moines (1969), student symbolic speech absent material disruption; New York Times Co. v. Sullivan (1964), the “actual malice” standard for defamation of public officials; New York Times Co. v. United States (1971), the heavy presumption against prior restraint; Miller v. California (1973), the modern obscenity test; Texas v. Johnson (1989), flag burning as protected symbolic speech; Citizens United v. FEC (2010), corporate political spending as political speech; Reed v. Town of Gilbert (2015), strict scrutiny for content-based restrictions; Garcetti v. Ceballos (2006), statements public employees make pursuant to their official duties receive no First Amendment protection; Nieves v. Bartlett (2019), probable cause generally defeats a claim of retaliatory arrest.

One absence belongs on any honest speech list: the right to record police performing public duties, which every federal circuit to decide the question has recognized in some form but the Supreme Court has never squarely held. Treat any AI claim of a settled nationwide rule here as an error to catch.

Establishment Clause: Engel v. Vitale (1962), no state-sponsored school prayer; Lemon v. Kurtzman (1971), the three-pronged Lemon test; Town of Greece v. Galloway (2014), legislative prayer upheld on historical tradition; Kennedy v. Bremerton School District (2022), the shift to historical practices, upholding a coach’s on-field prayer; Carson v. Makin (2022), a state offering tuition assistance cannot exclude schools for religious status.

Free Exercise Clause: Sherbert v. Verner (1963), the compelling interest test for burdens on religious practice; Wisconsin v. Yoder (1972), Amish schooling exemption under that test; Employment Division v. Smith (1990), neutral and generally applicable laws may burden religion; Church of Lukumi Babalu Aye v. City of Hialeah (1993), laws targeting religious practice struck down; Burwell v. Hobby Lobby Stores, Inc. (2014), religious exemptions for closely held corporations under RFRA.

What to Do

This activity combines historical understanding with modern application, and it is where this course teaches the levels of scrutiny; later activities assume the framework rather than reteaching it. You’ll use AI to generate a historical overview of one First Amendment clause and to identify a recent controversy involving that clause. Your job is to verify the AI’s output and evaluate how well it helps you learn.

Part 1: Clause History and Case Timeline

Pick one clause: Free Speech, the Establishment Clause, or the Free Exercise Clause. Run the Clause Historian to generate a historical overview and a list of landmark cases for that clause. Then verify. Check each major case and historical claim against the Constitution Annotated essays, Oyez, or the opinions themselves; you don’t need to read full opinions, just confirm whether each case was summarized correctly, whether the Court actually adopted the test or reasoning the AI attributes to it, and whether there are obvious omissions or misleading interpretations. The Holding Checker can help you prioritize which claims to verify first.

Part 2: Modern Application

Run the Current Controversy Finder using the same clause. It will surface a recent event, lawsuit, or legal debate involving that clause, such as a school speech case, a free exercise lawsuit, or a religious display dispute. Then investigate. Confirm the event or lawsuit actually exists and that the summary is accurate, and follow up with your own research: who is involved, what the claim is, whether it has gone to court, and what the legal questions are. If the AI gives multiple examples, pick one to go deep on.

Part 3: Write Your Report

Write a short report in two sections. Section one, on history and doctrine (300–400 words): which clause you picked, what the AI got right and what was unclear or inaccurate, a summary of the historical arc of the clause highlighting two or three verified landmark cases, and a reflection on how useful or misleading the AI’s version was and how your research improved or corrected it. Section two, on the recent controversy (300–400 words): what current issue or case the AI identified, whether it was real and accurate, what your follow-up research revealed, what constitutional issue is at stake and how it connects to the doctrine from section one, and a brief reflection on how courts or the public are wrestling with the First Amendment today.

Include one AI chat link with a 1–2 sentence explanation of what the conversation shows and why you chose to share it.

Suggested AI Prompts

Use these prompts as a starting point, then adjust them to fit your goal. Strong prompting develops through trial, revision, and testing. It’s a foundational skill that grows into more advanced AI work such as context engineering and agent-based workflows.

The Clause Historian

You are a constitutional law professor helping me understand the historical evolution of one of the three major First Amendment protections: the Free Speech Clause, the Establishment Clause, or the Free Exercise Clause. Please begin by asking me which clause I would like to focus on. Once I choose, provide a clear and detailed historical overview of how the Supreme Court’s interpretation of that clause has evolved over time. Include major turning points, shifts in legal doctrine, and at least five landmark Supreme Court cases. For each case, explain the holding, the test or principle it introduced or applied, and how it influenced later cases. End with a short summary of the current doctrinal approach to that clause, and flag any case where you are less than fully confident about the holding or the test so I know where to verify first.

Role assignment plus a required per-case structure (holding, test, influence) produces output you can verify field by field instead of as an undifferentiated narrative. The confidence-flagging instruction turns the model’s own uncertainty into a triage list for your fact-checking.

The Current Controversy Finder

You are a First Amendment legal research assistant helping me find a current (within the last one to two years) event, lawsuit, or controversy involving one of the three major First Amendment clauses: Free Speech, Establishment, or Free Exercise. First, ask me which clause I am interested in. Then use your web search tool to find and summarize a specific current event or legal dispute involving that clause. Clearly explain who is involved, what the constitutional issue is, and how the legal arguments relate to prior First Amendment doctrine. Focus on accuracy and depth, not just headlines, and cite the sources you relied on so I can confirm the dispute exists and is described fairly.

Requiring live search with citations keeps the model out of its weakest territory, recent events recalled from memory, where fabricated lawsuits are a known failure mode. Confirming at least one source yourself is part of the exercise, not optional.

The Holding Checker

You are a legal citation auditor. I will paste an AI-generated overview of First Amendment doctrine containing case names, holdings, and tests. Identify the five claims most worth verifying, prioritizing tests attributed to specific cases (which models frequently swap between cases), holdings stated more broadly than the Court decided, and any claim about a case being overruled or abandoned. For each, state what the claim asserts, rate your confidence that it is accurate as high, medium, or low, and name the fastest way to check it (the Oyez summary, the Constitution Annotated essay, or the opinion itself). Produce only the audit list; do not rewrite the overview.

A second adversarial pass over the model’s own output surfaces the weak points a fluent summary hides, and mapping each claim to a verification source builds the checking step directly into your workflow. Doctrinal tests are the highest-risk claims in First Amendment summaries, which is why the prompt targets them first.