The first amendment, at first glance, seems to deal with a few separate topics. Surely freedom of speech and press are related, but how does religion fit in?
Have you ever wondered why the first amendment includes freedom of religion, freedom of speech, freedom of press, right to assemble, and right to petition the government? Why are they all in the same amendment? Is there some underlying concept that ties them all together? In fact there is! In each and every case, you are expressing an idea. That is the fundamental nature of the first amendment. It is to protect the expression of ideas no matter what form they may take and no matter what method is used to convey those ideas. Stated another way, the government can not limit the flow of ideas between members of society.
Let’s look, for example, at prayer. What is prayer, but a form of speech? Therefore, like other forms of speech, it is protected under the first amendment. For this reason, prayer, even in public, must be protected just as all other speech would be protected; it can not be treated differently without there being a violation of the principals of the first amendment.
What about opposition to the government? These too are ideas. While some of these ideas may indeed lead to dangerous outcomes, it is important that we still protect the right of people to have the ideas. As soon as the government acts to restrict the flow of ideas through a society, the society will deteriorate and the government will gain more power. There’s also a high likelihood that pressure to express suppressed ideas will build up leading to an explosive shift in societal actions or underground movements to express these ideas.
Ideas vs Intent
What about yelling fire in a packed room? This seems like the first amendment is being limited because you’re restricting what can be said and where. This misconception has caused a lot of problems for those of us who want to ensure that our constitutionally guaranteed freedoms intact. The idea is that if the first amendment can be limited under certain situations, so can other amendments. However the first amendment isn’t being limited at all in this case. Keep in mind the purpose of the first amendment. It’s to protect the free exchange of information from one person to another. Whether or not yelling fire in a room is an exchange of an idea, the speech itself can be considered protected. It is the intention that can be legislated against. Intention to do harm is not speech. It may be conveyed through speech, but it is separate from it.
Unfortunately the courts do seem to conflate these two and legislate the speech itself. That is a problem. We see the same situation occurring with hate speech. The speech itself must be protected. However, if there is an intent to do harm, that can be legislated against. Likewise if someone were to break the head off of a statue of Martin Luther King Jr. the idea being expressed, most likely a hatred of MLK or of blacks in general, must be protected. The person can certainly be prosecuted for vandalism however. The same would go for defacing a Vietnam Veteran memorial.