Separation & the First Amendment

Does the First Amendment only apply to the Federal Government?

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Myth:
The First Amendment only applies to the Federal Government.

Response:
This is a particularly sad misunderstanding, because it relies upon an ignorance - deliberate or accidental - of large portions of our legal and political history. It is true that, when it was originally ratified, the First Amendment only restricted the actions of the Federal Government. State governments were free to ignore it - and many did, continuing to have established state churches for many years.

However, that is because none of the Bill of Rights applied to the states at all. The Constitution's guarantees against unreasonable searches and seizures, against cruel and unusual punishments, and against self-incrimination did not apply to the actions taken by the states. This changed, however, with the passage of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That is only the first section, but it is the most relevant one to this issue. First, it establishes just who qualifies as citizens of the United States. Second, it establishes that if someone is a citizen, then that person is protected by all of the privileges and immunities of the United States. This means that they are protected by the Constitution of the United States and that individual states are expressly prohibited from passing any laws which would abridge those constitutional protections.

This also means that every citizen of the United States is protected by the "rights and immunities" outlined in the First Amendment, and that no individual state is permitted to pass laws which would infringe upon those rights and immunities. Yes, the constitutional limitations on governmental powers apply to all levels of government: this is known as "incorporation."

It is worth noting that anyone who argues for this myth is also required to argue that state governments should be permitted to infringe upon free speech as well. But how many of them would really be willing to accept that position, and how many would reject it and try to find another way to rationalize their self-contradictions?