First Amendment
"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."
— U.S. Constitution, Amendment I (1791)
Federal Threats to Free Expression
The First Amendment protects our most fundamental freedoms—the rights that make self-government possible. Recent federal actions have raised serious concerns about these protections:
Funding Conditions on Speech
Federal agencies have used funding conditions to pressure universities and institutions to restrict speech and association. While the government may choose what to subsidize, conditioning funding on viewpoint-based restrictions raises serious constitutional concerns under the unconstitutional conditions doctrine.
Agency Actions Against Media
The FTC and FCC have undertaken investigations and enforcement actions that touch on forms of speech protected by the First Amendment, including investigations of advocacy groups over their efforts to convince advertisers to make certain choices.
Pressure on Academic Institutions
Executive orders and agency actions have targeted universities, creating pressure to restrict certain viewpoints, associations, or areas of inquiry. Academic freedom—the ability of scholars to pursue truth without political interference—is essential to the advancement of knowledge.
Religious Liberty Concerns
Federal mandates and requirements continue to raise concerns about burdens on religious exercise, particularly for institutions and individuals whose faith commitments conflict with federal policy preferences.
The State's Role in Protecting Free Expression
States have independent authority to provide greater protections for their citizens' expressive freedoms than the federal floor.
Anti-Commandeering
The federal government cannot commandeer state officials or resources to implement federal speech-restrictive programs. Printz v. United States (1997)
State Constitutional Protections
Many state constitutions provide broader free expression protections than the federal First Amendment, and states can enforce these independently.
Shield Law Tradition
States have long protected journalists from compelled disclosure of sources through shield laws—recognizing that press freedom requires practical protection.
Religious Freedom Restoration
Following Employment Division v. Smith, many states enacted their own RFRAs requiring strict scrutiny for burdens on religious exercise.
"Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these freedoms, even if they are misused by a minority."— Justice Hugo Black
State Bills to Protect Free Expression
The following model legislation provides states with tools to protect their citizens' First Amendment freedoms from federal overreach:
State Free Speech Protection Act
Freedom of SpeechProhibits state agencies and officials from participating in federal programs that condition benefits on restrictions of constitutionally protected speech. Creates a private right of action for citizens whose speech rights are violated.
Key Provisions:
- Prohibits state cooperation with federal directives that condition funding on speech restrictions
- Bars state officials from enforcing federal actions targeting protected expression
- Creates private right of action with statutory damages of $10,000 per violation
- Provides attorney fees for prevailing plaintiffs
- Waives sovereign immunity for state actors who violate the act
State Press Shield Law
Freedom of PressProtects journalists from being compelled to disclose confidential sources or unpublished information, and prohibits state cooperation with federal investigations targeting journalists for their reporting activities.
Key Provisions:
- Establishes absolute privilege for confidential source identification
- Creates qualified privilege for unpublished notes and materials
- Prohibits state officials from assisting federal investigations targeting journalists
- Requires state court approval before federal process can be served on journalists
- Defines "journalist" broadly to include bloggers and independent media
Religious Liberty Preservation Act
Free ExerciseEnsures that government action substantially burdening religious exercise must satisfy strict scrutiny, and prohibits state participation in federal mandates that violate religious conscience.
Key Provisions:
- Applies strict scrutiny to all government actions substantially burdening religious exercise
- Covers individuals, religious organizations, and religiously-affiliated businesses
- Prohibits state cooperation with federal mandates violating religious conscience
- Creates private right of action against state actors
- Provides for injunctive relief and compensatory damages
Defend the First Amendment in Your State
Download our model legislation and share it with your state legislators. The defense of free expression begins at the state level.