Implementation of the First Amendment is important considering the rulings of new cases such as, Counterman v. Colorado, and 303 Creative LLC v. Elenis. Leading to how future cases are analyzed, and what citizens’ rights are in the wake of them. This paper will be relating the First Amendment to cases centered around the freedom of speech, anti-discriminatory laws, and religion.
Freedom of speech is the most associated right with the First Amendment. However, the freedom of speech comes with restrictions, such as: incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. Primarily, threats are currently being challenged and changed. Counterman v. Colorado of June 27, 2023, is a case about stalking versus the First Amendment right restriction of intent of harm in speech. Billy Counterman sent over a thousand text messages to a singer-songwriter and was convicted of stalking, and sentenced to four and a half years due to the harm inflicted her life and mental state. Billy Counterman brought this to court arguing that this conviction was infringing his First Amendment right because he did not have the intent of causing her harm, thus, meaning the restriction on the First Amendment could not be applied in his sentence. The U.S. Supreme Court took the case and ruled 7 to 2 in favor of Billy Counterman. Surprisingly, the American Civil Liberties Union (ACLU) supported the court’s ruling in Counterman v. Colorado because this case would also apply to them when they use hyperboles that can be deemed violent. Now, if they argue they have no intent of violence behind the phrase, they cannot be convicted. However, Mary Ann Frank, a professor at the University of Miami Law, believes this ruling is extremely short sighted and shares, “That isn’t a political statement. There really isn’t any reason to be deferential to this kind of speech simply because you’re trying to protect a stray political comment”. The case offers both benefits and harms to different groups. On one hand, this case can potentially assist the ACLU’s goals. On the other hand, this can cause harm to those trying to report stalking cases. Either way, this will cause a change in the way the First Amendment is used in court.
The First Amendment and anti-discrimination laws can at times be directly in conflict with each other. Examples include, 303 Creative LLC v. Elenis, decided on June 30th, 2023, and Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018. The 303 Creative LLC v. Elenis is about a wedding website designer, Lorie Smith, and whether she has the right to refuse service to queer couples since, it goes against her religious beliefs, “Justice Neil M. Gorsuch, writing for the majority, said the First Amendment protects designer Lorie Smith from creating speech she does not believe”. This means her First Amendment right to religious expression in the context of this case trumps that of LGBT+ peoples’ right to freedom from discrimination, which is in the Fourteenth Amendment. This can also be seen in Masterpiece Cakeshop v. Colorado Civil Right Commission, where a cake maker refuses to make a cake for a queer couple. The implications of this case were, “there is no constitutional right to religious exemptions from neutral and generally applicable public accommodations laws; that the government’s interest in avoiding dignitary harm is sufficient to defeat most claims for religious exemptions; and that courts should be sensitive to evidence of government animus against vulnerable groups”. These constitutional principles established in 2018 in the Masterpiece case can be later seen in, 2023 in 303 Creative LLC v. Elenis, showing how a ruling can change the outcome of future cases when setting a standard. In these cases, there are benefits gained by religious parties, however, this is not beneficial to the LGBT+ community, and they will likely see a trend in similar cases.
The government is not supposed to make any laws in favor of religion but at the same time, they must protect the First Amendment right of freedom of religious expression. This can be seen in the Establishment Clause, “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”. However, this is in direct conflict with the Free Exercise Clause which is used to protect the right of freedom of expression, leading to cases such as Kramer v. Bremerton in June 2022. This case is about a coach at Bremerton who would pray with his football players before games. The school later asked him to do it privately, but after he refused to and continued to pray after games with his players, he was fired. He pleaded the First to the Supreme Court, saying firing him due to the expression of his religious belief was in direct violation of his rights. The court sided with Kramer in the case, but first, they had to examine different cases and use prior tests to determine who was in the right. This led to the removal of the Lemon Test which follows the three rules, “1) must have a secular legislative purpose, 2) must not primarily advance or inhibit religion, and 3) must not create an excessive entanglement with religion”. The problem found in this test was the fact any ruling by the government about religion would cause an unnecessary entanglement. To replace this, they had to adopt a new test. This new test looks back on history to what the founding fathers would have in mind when writing the Constitution and previous case rulings as well. This creates benefits for government employees, like teachers. While also making it more difficult for schools when making a decision when it comes to religion.
This shows how cases like this and those listed before leads to how the government will rule in future cases and thus the rights of citizens within the United States. This can create new trends in laws and legislature benefiting one group over another. Making this an immensely important topic in today’s world when looking at the recency of these cases.
