The First Amendment

The Establishment Clause prohibits the government from establishing an official religion, favoring one religion over another, or favoring religion over non-religion. The most contested doctrine under this clause involves the three-pronged Lemon test from Lemon v. Kurtzman (1971), which required laws to have a secular purpose, neither advance nor inhibit religion, and avoid excessive government entanglement with religion. The Supreme Court has moved away from Lemon in recent years. In Kennedy v. Bremerton School District (2022), the Court replaced Lemon with a historical practices and understandings test, asking whether the challenged government action is consistent with the original understanding of the Establishment Clause.

The clause originally restrained only Congress. In Everson v. Board of Education (1947), the Supreme Court applied it to state and local governments through the Fourteenth Amendment, and Justice Hugo Black's opinion quoted Thomas Jefferson's 1802 letter to the Danbury Baptists describing a wall of separation between church and state.

Lemon itself arose from Pennsylvania and Rhode Island programs that paid part of the salaries of teachers of secular subjects in religious schools. The Court struck down both programs, but the three-part test it announced was applied unevenly for decades, and several justices openly criticized it as unpredictable.

Before formally abandoning Lemon, the Court had already relied on history in specific cases. Marsh v. Chambers (1983) upheld Nebraska's paid legislative chaplain, Town of Greece v. Galloway (2014) upheld prayers opening town board meetings, and American Legion v. American Humanist Association (2019) upheld the 40-foot Bladensburg Peace Cross war memorial by a 7-2 vote. The page on church-state separation traces how these rulings fit together.

The Free Exercise Clause protects the right to hold any religious belief and to practice religion, with some limits. In Employment Division v. Smith (1990), the Supreme Court ruled that the government may enforce neutral, generally applicable laws even if they burden religious practice, as long as the law does not target religion. To overcome a law that is not neutral or generally applicable, the government must show a compelling interest and use the least restrictive means. The Religious Freedom Restoration Act (RFRA) of 1993 restored a heightened standard for federal law after Smith.

For almost three decades before Smith, the Court applied a stricter standard. In Sherbert v. Verner (1963), a Seventh-day Adventist denied unemployment benefits for refusing Saturday work won her case, and in Wisconsin v. Yoder (1972) Amish families won an exemption from compulsory schooling after the eighth grade.

Smith involved two Oregon drug counselors fired for using peyote in a Native American Church ceremony and then denied unemployment benefits. Justice Antonin Scalia wrote for the 6-3 majority. The ruling alarmed religious groups across the spectrum, and Congress passed RFRA with near-unanimous support: the House by voice vote and the Senate 97-3.

In City of Boerne v. Flores (1997), the Court held that RFRA could not be applied to state and local governments, so Congress passed a narrower law in 2000 protecting religious land use and prisoners. Under the federal RFRA, Burwell v. Hobby Lobby (2014) exempted closely held companies from the Affordable Care Act's contraception mandate. For how the Court decides which of these cases to take, see how cases reach the Supreme Court.

Public schools present the most contested Establishment Clause battleground. The Supreme Court has struck down state-sponsored prayer (Engel v. Vitale, 1962), Bible readings (Abington School District v. Schempp, 1963), and moments of silence designed for prayer. However, student-initiated religious speech is generally protected. In Kennedy v. Bremerton School District (2022), the Court ruled that a public school football coach had a First Amendment right to pray on the field after games, reversing lower courts that had treated his prayer as government speech.

Engel involved a 22-word nondenominational prayer written by the New York Board of Regents for daily recitation. The Court held 6-1 that government may not compose official prayers, even voluntary ones. A year later, Schempp and its companion case from Maryland ended mandatory Bible reading and Lord's Prayer recitation in public schools by an 8-1 vote.

The Court extended these rulings to school events. Lee v. Weisman (1992) barred clergy-led prayer at a middle school graduation, 5-4, and Santa Fe Independent School District v. Doe (2000) struck down student-led prayer delivered over the loudspeaker before high school football games, 6-3.

Congress protected student religious groups in the Equal Access Act of 1984, which requires public secondary schools that allow non-curricular clubs to allow religious ones on equal terms; the Court upheld it in 1990. In Kennedy, decided 6-3, Coach Joseph Kennedy of Bremerton, Washington, had knelt at the 50-yard line after games. For the related question of the Pledge in classrooms, see the page on the Pledge of Allegiance.

The question of whether government money may flow to religious institutions has evolved significantly. In Espinoza v. Montana Department of Revenue (2020), the Court ruled that states may not exclude religious schools from otherwise available public aid programs solely because they are religious. In Carson v. Makin (2022), the Court extended this, ruling that Maine must include religious schools in its tuition assistance program. These decisions reflect a shift toward treating religious and secular organizations identically for funding purposes.

The earliest funding case, Everson (1947), upheld New Jersey's reimbursement of bus fares for parents whose children attended religious schools. In Zelman v. Simmons-Harris (2002), the Court upheld Cleveland's school voucher program 5-4 because the money reached religious schools only through parents' independent choices, even though most voucher students attended them.

Trinity Lutheran Church v. Comer (2017) set up the recent cases. Missouri had excluded a church preschool from a grant program that paid to resurface playgrounds with recycled tires, and the Court held 7-2 that denying a public benefit solely because of religious status violated the Free Exercise Clause.

Espinoza turned on Montana's state constitutional ban on aid to religious schools, a type of provision found in roughly three dozen state constitutions. In 2025 the Court split 4-4 on whether Oklahoma could approve a religious public charter school. The tie left in place the Oklahoma Supreme Court ruling that blocked the school, St. Isidore of Seville, and left the question open for the rest of the country. The page on church-state separation covers the wider debate.

The default rule is that all speech is protected unless it falls within a narrow, historically recognized exception. The Supreme Court has held that speech may not be restricted simply because it is offensive, unpopular, or untrue. Content-based restrictions, which target speech because of its message, are subject to strict scrutiny and almost always struck down. Content-neutral restrictions, which regulate the time, place, or manner of speech regardless of content, are more easily justified.

Strict scrutiny requires the government to prove the law is narrowly tailored to serve a compelling interest. In Reed v. Town of Gilbert (2015), the Court unanimously struck down an Arizona town's sign code that treated a church's temporary directional signs more harshly than political or ideological signs, because the rules turned on what each sign said.

Content-neutral rules face intermediate scrutiny: they must serve a significant government interest, be narrowly tailored, and leave open ample alternative ways to communicate. In Ward v. Rock Against Racism (1989), the Court upheld New York City's requirement that concerts at the Central Park bandshell use a city sound technician to control volume.

The First Amendment restrains only government, not private employers or companies. Even false statements are not automatically unprotected: in United States v. Alvarez (2012), the Court struck down the Stolen Valor Act's ban on lying about military medals, and Congress then passed a narrower 2013 law that punishes such lies only when told to obtain money or benefits. See the Bill of Rights for how speech fits among the other freedoms.

Under Brandenburg v. Ohio (1969), the government may only prohibit speech that is directed to inciting or producing imminent lawless action and that is likely to produce such action. Abstract advocacy of illegal conduct, even the violent overthrow of government, is protected. The Brandenburg test replaced the earlier clear and present danger test, which had been used to imprison political dissidents during the World War I era. The imminence requirement is key: a speech calling for action someday is protected; a speech calling for the crowd in front of you to attack someone right now may not be.

The old test grew out of prosecutions under the Espionage Act of 1917 and the Sedition Act of 1918. Socialist leader Eugene Debs received a 10-year sentence for a 1918 antiwar speech in Canton, Ohio, which the Court upheld in 1919; he ran for president from prison in 1920 and drew roughly 900,000 votes.

Dissent slowly reshaped the law. Justice Holmes dissented in Abrams v. United States (1919), and Justice Brandeis wrote in Whitney v. California (1927) that the remedy for bad speech is more speech. Even so, Dennis v. United States (1951) upheld the convictions of Communist Party leaders during the early Cold War. Brandenburg expressly overruled Whitney.

Later cases show how demanding imminence is. In Hess v. Indiana (1973), a protester's shouted threat to take the street later was protected because it was aimed at no one in particular and at no specific time, and NAACP v. Claiborne Hardware Co. (1982) protected heated speeches supporting a civil rights boycott in Mississippi.

The Supreme Court has recognized a small number of speech categories that receive no First Amendment protection: true threats (statements that communicate a serious expression of intent to commit unlawful violence against a specific person or group), obscenity (as defined by the three-part Miller test), defamation (false statements of fact about a specific person made with the required level of fault), fraud, perjury, and speech that is integral to criminal conduct. The Court has been reluctant to expand these categories and has rejected attempts to add new ones, as in United States v. Stevens (2010), where it struck down a law banning depictions of animal cruelty.

Chaplinsky v. New Hampshire (1942) added fighting words: face-to-face personal insults likely to provoke an immediate violent reaction. The category still exists in theory, but the Court has not upheld a conviction on fighting-words grounds since that case, and has read it very narrowly.

Obscenity is judged by the Miller v. California (1973) test: whether an average person applying contemporary community standards would find the work appeals to prurient interest, whether it depicts sexual conduct in a patently offensive way as defined by state law, and whether it lacks serious literary, artistic, political, or scientific value. Child sexual abuse material is unprotected regardless of that test under New York v. Ferber (1982).

The Court again refused a new category in Brown v. Entertainment Merchants Association (2011), striking down California's ban on selling violent video games to minors, 7-2. In Counterman v. Colorado (2023), it held that prosecuting a true threat requires proof that the speaker at least recklessly disregarded how the words would be understood. Many of these rules come from cases collected on the landmark Supreme Court cases page.

The First Amendment protects not just words but expressive conduct. Burning an American flag (Texas v. Johnson, 1989), wearing an armband to protest a war (Tinker v. Des Moines, 1969), and refusing to salute the flag (West Virginia v. Barnette, 1943) are all protected expression. The government may regulate expressive conduct through neutral laws, but may not target the expressive element specifically. Draft card burning was upheld because the law banning it served a legitimate purpose unrelated to suppressing the anti-war message.

The draft card case is United States v. O'Brien (1968). David O'Brien burned his card on the steps of a South Boston courthouse in 1966, and the Court upheld his conviction 7-1. Its test still governs expressive conduct: a regulation is valid if it furthers an important interest unrelated to suppressing expression and restricts speech no more than necessary.

In Spence v. Washington (1974), the Court protected a student who hung a flag upside down with a peace symbol taped to it, asking whether the conduct was meant to convey a particular message likely to be understood. But in Clark v. Community for Creative Non-Violence (1984), it upheld a National Park Service ban on sleeping in Lafayette Park during a protest about homelessness.

Cross burning shows the limits. In Virginia v. Black (2003), the Court held that a state may ban cross burning carried out with intent to intimidate, but may not treat the act of burning itself as automatic proof of that intent. For more on flag-related cases, see the history of the American flag.

The First Amendment also limits what the government can compel you to say. In West Virginia v. Barnette (1943), the Supreme Court ruled that public school students may not be compelled to recite the Pledge of Allegiance. Wooley v. Maynard (1977) held that New Hampshire could not require citizens to display Live Free or Die on their license plates. 303 Creative LLC v. Elenis (2023) extended this principle, holding that the First Amendment protects a web designer from being compelled by state law to create expressive content for same-sex weddings that she objects to. Her objection was religious, but the Court decided the case under the Free Speech Clause, so the rule does not depend on religion.

Barnette reversed Minersville School District v. Gobitis, an 8-1 decision from just three years earlier, and was announced on Flag Day, June 14, 1943. In Wooley, Jehovah's Witness George Maynard had covered the state motto with tape and served 15 days in jail. The Pledge of Allegiance page tells the full story of the flag-salute cases.

When the government itself speaks, it may choose its message. In Pleasant Grove City v. Summum (2009), a city could accept a donated Ten Commandments monument while refusing another group's monument, and Walker v. Texas Division, Sons of Confederate Veterans (2015) held 5-4 that specialty license plates are government speech. But in Shurtleff v. Boston (2022), a unanimous Court held that a city flagpole open to many private groups was not government speech, so Boston could not refuse a Christian flag.

The principle also covers compelled payments. In Janus v. AFSCME (2018), the Court held 5-4 that public employees cannot be required to pay fees to a union they have not joined, overruling a 1977 precedent. In 303 Creative, decided 6-3, web designer Lorie Smith challenged Colorado's public accommodations law before taking any wedding commissions.

Prior restraint is government censorship of speech before it is published. It is the most serious First Amendment violation the press can face. The Supreme Court established an extremely high bar against prior restraint in Near v. Minnesota (1931) and reinforced it in New York Times Co. v. United States (1971), the Pentagon Papers case, where the Court refused to allow the Nixon administration to stop publication of a secret study of the Vietnam War. The government bears a very heavy burden to justify any prior restraint, and courts almost never permit it.

Near involved a Minnesota law that let courts shut down any malicious, scandalous, and defamatory newspaper as a public nuisance, used against Jay Near's Saturday Press in Minneapolis. Chief Justice Charles Evans Hughes wrote for a 5-4 majority, noting only narrow exceptions, such as publishing the sailing dates or locations of troops in wartime.

The Pentagon Papers were a 7,000-page Defense Department study of the war begun in 1967 and leaked by analyst Daniel Ellsberg. The Times began publishing on June 13, 1971, and the Court ruled on June 30, just 17 days later. The case is one reason the free press page treats prior restraint as the gravest threat to journalism.

Courts apply the same rule to trial coverage. In Nebraska Press Association v. Stuart (1976), the Court unanimously struck down a judge's gag order barring reporting on a murder suspect's confession, directing trial judges to use alternatives such as moving the trial or sequestering the jury.

New York Times Co. v. Sullivan (1964) is the most important press freedom case in American history. The Court held that a public official may not recover damages for defamation without proving the defendant made the statement with actual malice, meaning knowledge that it was false or reckless disregard for its truth or falsity. The rule was later extended to all public figures. It was designed to ensure that vigorous debate about public matters is not chilled by the threat of defamation lawsuits. The actual malice standard remains the law today, though it has faced increasing calls for revision.

The advertisement, titled Heed Their Rising Voices, ran on March 29, 1960, to raise money for Martin Luther King Jr.'s legal defense. It contained minor errors, such as the song protesters sang and the number of times King had been arrested, and Sullivan was not named in it. Alabama officials had filed libel suits against the Times seeking millions of dollars.

The Court extended the rule to public figures in 1967, and in Gertz v. Robert Welch (1974) it let states set a lower standard for private individuals. In Hustler Magazine v. Falwell (1988), a unanimous Court held that a public figure cannot win damages for a crude parody that no reader would take as a statement of fact. New York Times v. Sullivan itself grew out of the civil rights movement.

Justices Clarence Thomas and Neil Gorsuch have both written that the Court should reconsider Sullivan, but the Court has not taken up a case to do so. It turned away casino executive Steve Wynn's petition in March 2025 and Alan Dershowitz's suit against CNN in June 2026, the second over a dissent by Justice Thomas joined by Justice Gorsuch. Defamation suits still succeed when the evidence is strong: in April 2023, Fox News agreed to pay Dominion Voting Systems $787.5 million to settle claims over false election-fraud statements.

Reporters often receive confidential information from sources who fear retaliation. Whether journalists may refuse to reveal their sources to government investigators is contested. In Branzburg v. Hayes (1972), the Supreme Court ruled 5-4 that the First Amendment does not give reporters a privilege to refuse to testify before grand juries. However, most states have enacted shield laws providing some statutory protection for journalist-source confidentiality. The federal government has no general shield law, though Justice Powell's Branzburg concurrence has been read by some courts to provide a qualified privilege in civil cases.

Branzburg combined three cases: Paul Branzburg of the Louisville Courier-Journal, who had written about people making hashish, and reporters Earl Caldwell and Paul Pappas, who had covered the Black Panther Party. Justice Byron White wrote the majority opinion, and Justice Lewis Powell's short concurrence suggested courts should balance press freedom against the need for testimony case by case.

The stakes became clear in 2005, when New York Times reporter Judith Miller spent 85 days in jail for refusing to testify to a grand jury investigating the leak of CIA officer Valerie Plame's identity. She testified only after her source released her from her promise of confidentiality.

About 40 states and the District of Columbia have shield statutes, and courts in most other states recognize some privilege. A federal shield law, the PRESS Act, passed the House unanimously in January 2024 but did not pass the Senate. Journalists' access to government records is covered on the FOIA and government transparency page.

The First Amendment does not guarantee the press a general right of access to government information or proceedings beyond what the public has. The Freedom of Information Act (FOIA) provides a statutory right to request federal agency records. However, the Court has recognized a First Amendment-based right of public and press access to criminal trials and certain other judicial proceedings, as the openness of courts has deep historical roots in our legal tradition.

The courtroom right comes from Richmond Newspapers v. Virginia (1980), in which the Court held 7-1 that the public and press have a First Amendment right to attend criminal trials. Later decisions extended it to jury selection and preliminary hearings, and struck down a Massachusetts law that automatically closed courtrooms during testimony by minor victims.

President Lyndon Johnson signed FOIA on July 4, 1966. It has nine exemptions, covering matters such as national security, personal privacy, and law enforcement investigations, and federal agencies now receive well over a million requests each year. The FOIA and government transparency page explains how to file one.

Outside the courtroom, the press has no greater access than the public. In Houchins v. KQED (1978), the Court rejected a television station's claim of a special right to inspect a county jail. Cameras are still barred from Supreme Court arguments, though the Court has livestreamed argument audio since May 2020; see how the Supreme Court works.

The government may not prohibit peaceful assembly in traditional public forums such as streets, sidewalks, and parks. The public forum doctrine, established in Hague v. Committee for Industrial Organization (1939), holds that these places have been used immemorially for purposes of assembly, communicating thoughts between citizens, and discussing public questions. The government may impose reasonable time, place, and manner restrictions on assemblies in public forums, but may not ban them outright or restrict them based on the content of the message.

Hague arose when Jersey City Mayor Frank Hague used local ordinances to block labor organizers from holding meetings and handing out leaflets. The assembly page follows how that fight produced the public forum doctrine.

The Court later sorted government property into three types in Perry Education Association v. Perry Local Educators' Association (1983): traditional public forums, forums the government opens on purpose, and nonpublic forums. In nonpublic forums, such as military bases and airport terminals, the government may impose reasonable restrictions as long as it does not target viewpoints.

Buffer zones around abortion clinics have tested these rules. Hill v. Colorado (2000) upheld an eight-foot floating buffer near health care facilities, but McCullen v. Coakley (2014) unanimously struck down a fixed 35-foot zone in Massachusetts as a burden on far more speech than necessary. Frisby v. Schultz (1988) upheld a ban on picketing targeted at a single home.

Governments may require permits for large demonstrations and parades as a time, place, and manner regulation, as long as the permit process is content-neutral, provides clear standards, does not give officials unbridled discretion to deny permits, and does not impose unreasonable burdens. A permit requirement that gives a government official discretion to grant or deny permits based on the message of the assembly is unconstitutional. Officials also cannot require protest organizers to pay for police protection based on the likely reaction of hostile audiences, a principle known as the heckler's veto doctrine.

In Cox v. New Hampshire (1941), the Court upheld a parade license requirement applied to a Jehovah's Witnesses march because it was administered neutrally. In Shuttlesworth v. City of Birmingham (1969), it reversed the conviction of civil rights leader Fred Shuttlesworth for marching without a permit in 1963, because the ordinance let officials refuse permits for almost any reason.

Fees face the same limits. In Forsyth County v. Nationalist Movement (1992), the Court struck down, 5-4, a Georgia county ordinance that let an administrator raise a permit fee based on how much security a controversial message would require.

The hardest test came in 1977 and 1978, when a small neo-Nazi group sought to march in Skokie, Illinois, home to many Holocaust survivors. Federal courts struck down the village's ordinances, and the group eventually rallied in Chicago instead. The civil rights movement relied on the same permit rulings to march.

Though not mentioned in the text, the Supreme Court has recognized an implied right of association as part of the First Amendment. In NAACP v. Alabama (1958), the Court held that Alabama could not force the NAACP to disclose its membership list, recognizing that freedom of association is essential to First Amendment liberties. The government generally may not compel disclosure of membership in controversial organizations, prohibit membership in groups that advocate illegal activity while not engaging in it, or condition government benefits on renouncing association with unpopular groups.

NAACP v. Alabama was unanimous. Alabama had fined the NAACP $100,000 for refusing to hand over its members' names at the height of the civil rights movement, when exposure could mean lost jobs or violence. In Shelton v. Tucker (1960), the Court struck down an Arkansas law requiring teachers to list every organization they belonged to.

The right also protects a group's ability to choose members when that shapes its message. In Roberts v. United States Jaycees (1984), Minnesota could require the Jaycees to admit women, but in Boy Scouts of America v. Dale (2000), the Court held 5-4 that the Scouts could exclude a gay scoutmaster because forced inclusion would affect the message the group wished to send.

Disclosure remains contested. In Americans for Prosperity Foundation v. Bonta (2021), the Court held 6-3 that California could not require charities to file their major donors' names with the state attorney general. Similar questions arise with lobbying and interest groups and campaign finance.

Campaign money raises the same speech and association questions. In National Republican Senatorial Committee v. FEC, decided June 30, 2026, the Court ruled 6-3, in an opinion by Justice Brett Kavanaugh, that the federal limits on how much a political party may spend in coordination with its own candidates violate the First Amendment. The ruling overruled FEC v. Colorado Republican Federal Campaign Committee (2001), which had upheld those limits. The limits on direct contributions to candidates were not at issue and remain in place.

The right to petition is the least litigated of the five First Amendment freedoms but among the most important for democratic accountability. It protects the right to contact elected officials, file lawsuits against the government, sign petitions, lobby legislators, and engage in other activities directed at influencing government action. The government is not required to respond to petitions or grant their requests. The petition right applies to all branches of government, including administrative agencies and courts.

The right is older than the Constitution. England's Bill of Rights of 1689 guaranteed subjects the right to petition the king, and the Declaration of Independence complained that the colonists' repeated petitions had been answered only by repeated injury. The road to the Revolution explains why the framers valued it.

From 1836 to 1844, the House of Representatives enforced a gag rule that automatically tabled antislavery petitions without discussion. Former president John Quincy Adams, then a congressman, fought the rule for eight years until the House repealed it in December 1844. The House of Representatives page covers how the chamber sets its own rules.

Petitioning also shields people who lobby the government from certain legal liability. Under the Noerr-Pennington doctrine, drawn from Supreme Court decisions in 1961 and 1965, businesses cannot be held liable under antitrust law simply for urging officials to pass laws or take actions that harm competitors.

Under current First Amendment doctrine, hate speech is protected expression. Proponents argue that giving the government power to define and prohibit hate speech would inevitably be used against political minorities and disfavored viewpoints. Who decides what is hateful? History shows that speech restrictions nominally aimed at protecting vulnerable groups are often turned against them. The cure is worse than the disease. The answer to harmful speech is counter-speech, education, and social sanction, not government prohibition.

Supporters point to Matal v. Tam (2017), in which the Court unanimously struck down a federal ban on trademarks that disparage people, after an Asian American band named The Slants was refused registration. Justice Samuel Alito wrote that speech expressing ideas that offend is still protected, and cited Justice Holmes's call to protect the thought that we hate.

In R.A.V. v. City of St. Paul (1992), teenagers burned a cross in a Black family's yard. The Court unanimously struck down the city ordinance used against them because it singled out certain hateful messages for punishment, while making clear that the conduct itself could be prosecuted under other laws, such as those against arson, trespass, and threats.

Supporters also note that the civil rights movement depended on the same broad protections, in cases like New York Times v. Sullivan and Edwards v. South Carolina (1963). The distinction between speech and conduct remains: in Wisconsin v. Mitchell (1993), the Court unanimously upheld tougher sentences for crimes motivated by bias.

Critics of the American approach argue that unregulated hate speech causes concrete harm to targeted groups, including psychological damage, economic exclusion, and a chilling effect on the targeted group's own speech. They note that virtually all other liberal democracies, including Canada, Germany, France, and the UK, restrict hate speech without collapsing into authoritarianism. The First Amendment's near-absolute protection of hate speech reflects a specific historical and political choice, not a universal truth, and that choice inflicts real costs on real people.

Other democracies draw the line differently. Canada's Criminal Code bans the willful promotion of hatred against identifiable groups, a law its Supreme Court upheld in R. v. Keegstra (1990), and Germany criminalizes incitement to hatred and Holocaust denial, and since 2017 has required large platforms to remove clearly illegal content quickly.

International law also leans toward restriction. Article 20 of the International Covenant on Civil and Political Rights requires countries to prohibit advocacy of national, racial, or religious hatred that amounts to incitement. When the United States ratified the treaty in 1992, it added a reservation stating that it would not restrict speech protected by the Constitution.

American history includes a brief exception: Beauharnais v. Illinois (1952) upheld a group libel law by a 5-4 vote, though later cases have left it with little force. Many universities adopted speech codes in the late 1980s, and courts struck several down, starting with the University of Michigan's in 1989. The Supreme Court would have to reverse decades of precedent to change the rule.

The Establishment and Free Exercise Clauses can pull in opposite directions. Strict separationists argue the Establishment Clause requires a high wall between government and religion: no government money to religious schools, no religious symbols on government property, no religious exercises in public schools. Accommodationists argue the government should not be hostile to religion and that the clauses together require only neutrality: the government may not favor religion over non-religion or one religion over another, but it need not exclude religion from public life. The Court's recent decisions in Espinoza, Carson, and Kennedy have moved substantially toward the accommodationist view.

Both camps claim the founders. Separationists cite James Madison's 1785 Memorial and Remonstrance against a Virginia tax to support Christian teachers and Jefferson's Virginia Statute for Religious Freedom of 1786. Accommodationists point out that the First Congress hired chaplains and that early presidents issued Thanksgiving proclamations. The framers page profiles the men behind these arguments.

Holiday displays show how fine the lines became. Lynch v. Donnelly (1984) upheld a city nativity scene displayed among secular decorations, while County of Allegheny v. ACLU (1989) struck down a nativity scene standing alone on a courthouse staircase but upheld a menorah beside a Christmas tree. On a single day in 2005, the Court struck down Ten Commandments displays in Kentucky courthouses and upheld a monument on the Texas Capitol grounds.

The shift continues in state legislatures. In 2024 Louisiana required the Ten Commandments to be posted in every public school classroom, and a federal court blocked the law that November; in February 2026 the full Fifth Circuit vacated that injunction 11-7 as premature, allowing the law to take effect while leaving room for future challenges once displays go up. For the full history, see the page on church-state separation.

Should religious believers be exempt from generally applicable laws that burden their faith? Employment Division v. Smith (1990) said no: neutral, generally applicable laws may burden religion without triggering heightened scrutiny. But Fulton v. City of Philadelphia (2021) and other recent decisions have found many laws are not truly neutral or generally applicable, and have required religious exemptions. The debate continues over whether RFRA and the Free Exercise Clause require religious exemptions from civil rights laws, vaccine mandates, and other requirements that burden sincere religious practice.

Exemption claims have reached the Court repeatedly under RFRA. Burwell v. Hobby Lobby (2014) exempted closely held for-profit companies from the contraception mandate, 5-4, and Little Sisters of the Poor v. Pennsylvania (2020) upheld federal rules broadening that exemption, 7-2.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) was decided 7-2 on narrow grounds: state commissioners had shown hostility toward baker Jack Phillips's religion. In Fulton, which was unanimous, Philadelphia's foster care contract allowed case-by-case exemptions, so refusing one to Catholic Social Services was not neutral; the Court declined to overrule Smith.

During the COVID-19 pandemic, Roman Catholic Diocese of Brooklyn v. Cuomo (2020) blocked New York's attendance caps on houses of worship, and Tandon v. Newsom (2021) held that religious gatherings may not be treated worse than comparable secular ones. In Mahmoud v. Taylor (2025), the Court held 6-3 that parents in a Maryland school district must be allowed to opt their children out of lessons using LGBTQ-themed storybooks. The Bill of Rights page places these clauses in context.

Florida and Texas enacted laws limiting when large social media platforms can remove users' posts, which their sponsors said answered censorship of conservative voices. Texas barred removal based on viewpoint, and Florida mainly protected political candidates and news outlets. In Moody v. NetChoice (2024), the Supreme Court addressed these laws and identified the constitutional principles at stake: social media platforms engage in editorial judgment when they compile and curate others' speech, and that editorial judgment receives First Amendment protection. The majority said a state may not force a platform to carry, in a feed it curates, content it would otherwise exclude. The Court did not decide whether either law is valid; it vacated the lower court rulings and sent the cases back for further proceedings.

Both laws passed in 2021. The Eleventh Circuit blocked most of Florida's law, while the Fifth Circuit upheld Texas's, creating a split between federal appeals courts that the Supreme Court agreed to resolve.

Justice Elena Kagan wrote the majority opinion in Moody, decided July 1, 2024. The justices were unanimous in sending the cases back because the lower courts had not analyzed every way the laws applied, but the majority explained that Texas could not force YouTube and Facebook to change how they curate their main feeds.

A separate statute, Section 230 of the Communications Decency Act of 1996, protects platforms from lawsuits over content their users post and over good-faith moderation. The Court declined to narrow it in two 2023 cases involving terrorist content. Government monitoring of online activity is covered on the privacy and surveillance page.

In Lindke v. Freed and O'Connor-Ratcliff v. Garnier (2024), the Supreme Court ruled that when a government official blocks someone on social media, whether it violates the First Amendment depends on whether the account is used for official government purposes. If an official uses a personal account to conduct official business, announce policies, and communicate with constituents, then blocking a critic based on their viewpoint is government action violating the First Amendment. Personal social media posts on a personal account are not government speech even if the author holds a government job.

In Lindke, Port Huron, Michigan, city manager James Freed deleted comments criticizing his pandemic response; in O'Connor-Ratcliff, two California school board members blocked parents who posted repeatedly. The Court decided both on March 15, 2024. Justice Amy Coney Barrett wrote the unanimous opinion in Lindke, and a short unsigned opinion sent O'Connor-Ratcliff back to be judged under the Lindke test.

The test has two parts: the official must have had actual authority to speak for the government on the subject, and must have claimed to use that authority in the post. Officials who mix personal and official content on one account risk liability, so the Court suggested labeling accounts clearly.

An earlier dispute involved a president. In 2019, a federal appeals court held that President Trump violated the First Amendment by blocking critics on his Twitter account, but the Supreme Court vacated that ruling as moot in April 2021 after he left office. The President page covers the powers and limits of the office.

In Murthy v. Missouri (2024), the Supreme Court ruled against plaintiffs who claimed the federal government violated the First Amendment by pressuring social media companies to remove posts about COVID-19 and elections that officials had flagged as misinformation. Reversing a lower court order that had limited those contacts, the Court found the plaintiffs lacked standing because they could not trace their specific content removals to government pressure rather than the platforms' own decisions. The NRA v. Vullo (2024) case, decided the same term, reaffirmed that governments cannot use their regulatory power to coerce private entities into censoring speech they disfavor.

Murthy was brought by Missouri, Louisiana, and five individuals. The Fifth Circuit had barred officials at the White House, the Surgeon General's office, the CDC, and the FBI from coercing or significantly encouraging platforms to remove content, but the Supreme Court reversed 6-3 in June 2024 on standing grounds without deciding the merits.

In Vullo, New York's top financial regulator urged insurers and banks to cut ties with the National Rifle Association after the 2018 Parkland school shooting. Justice Sonia Sotomayor wrote for a unanimous Court that the NRA had plausibly alleged unconstitutional coercion, relying on Bantam Books v. Sullivan (1963), which struck down informal pressure on book distributors.

The line these cases draw is between persuasion and threats. Officials may criticize speech and urge companies to act, but may not use their power to punish those who refuse. Government collection of data from platforms raises separate questions covered on the privacy and surveillance and Fourth Amendment pages.