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THE FIRST AMENDMENT: BASIC FREEDOMS
Chapter 6
Introduction
You know more constitutional law than you think you do! Thanks to the media, they are able to
present information about the law that the general public can develop a sense of the basics
1st Amendment
“Prohibits Congress from making any laws that restrict freedom of religion, freedom of speech, freedom of the press or the right to gather or assemble peaceably and to request the government to respond to complaints from its citizens”
Freedom of Religion
The first right set forth in the Bill of Rights The founding fathers wanted to guarantee
every individual religious freedom It forbids the government constraint on
people’s choices of beliefs Requires that people be free to act on their
beliefs An important legal issue is to keep church
and state separate To truly accomplish this is challenging
Freedom of Religion
Establishment Clause
Free Exercise Clause
Establishment Clause
“Congress shall make no law respecting an establishment of religion” Cannot create a national church or
proscribed religion
The government cannot show preference to any particular religion
Establishment Clause
Hamilton v. Regents of the University of California (1934) Required all freshmen and sophomores to
complete 6 units of military training to attain full academic standing as a junior
Taking these courses did not obligate the students to serve in or in any way become a part of the U.S. military establishment
No constitutional violation in making students take these military courses
Establishment Clause
Everson v. Board of Education- separation of church and state (1947)
Supreme Courts ruling: Allowing reimbursements to parents for the
transportation of their children to parochial schools on the public bus system did not constitute an establishment of religion
Establishment Clause
Engle v. Vitale (1962) - school prayer Courts ruling:
Voluntary or otherwise conducted in public school classrooms, was unconstitutional
Wallace v. Jeffries (1985) – moment of silence Courts ruling:
Moment of silence for mediation or voluntary prayer to be used to encourage religious values, was unconstitutional
How to challenge the Establishment Clause? Must meet three standards
1. Have a primary secular purpose2. Have a principle effect that neither
advances nor inhibits religion and3. Not generate excessive entanglement
between government and religion, as set forth in Lemon v. Kurtzman
Establishment Clause
1980- Court struck down a Kentucky law requiring the posting of the 10 Commandments in all classrooms
1984- “Equal Access” law gave students the right to hold religious meetings in public high schools outside class hours
2003- Alabama Supreme Court Justice, Roy Moore, refused to remove a statute of the 10 Commandments from the judicial building. He refused and was eventually removed from his position
Free Exercise Clause
“Congress shall make no law…prohibiting the free exercise [of religion]”
It involves both the freedom to believe and the freedom to act
Free Exercise Clause
Cantwell v. Connecticut (1940) Religious beliefs cannot be regulated by
government and delineated how beliefs and acts differ
Courts have had to balance the requirements of the free exercise clause against society’s legal, social, and religious needs. St. Paul, MN
Ordinance prohibiting people from hiding their identity “by means of a robe, mask or other disguise”
Muslim woman got ticket for wearing a veil The court ruled that the ordinance was unconstitutional
Free Exercise Clause
More examples: Autopsies- affected some religious
practices West Virginia State Board of Education v.
Barnette (1943) States could not require kids to pledge
allegiance each school day Wooley v. Maynard (1977)
State could not punish someone for blacking out their license plate’s state motto where it says “Live Free or Die”
Free Exercise Clause
To balance this assertion, in the Wooley case, the court held that printing “In God We Trust” on money did not violate the Constitution Money is passed among people, therefore,
it does not indicate that a particular individual agrees with a religious or government belief, but a motto on a license plate would
Also, money is transported in such a manner as not to be a public display
Free Exercise Clause
Dec. 1993-Supreme ruled that the Boy Scouts could require applicants to promise to “love G-d” and to “do my duty to G-d and my country” 1990- Mark Welsh was denied membership
in the Tiger Cub Group because he refused to sign the required pledge Court said that this was not a violation of the 1st
Amendment
Free Exercise Clause
Conduct not protected by the freedom of religion clause
Interpretations
Some argue that the courts need to discover the original intent of the Constitution and the amendments There should be no deviation
Some believe that judges should be allowed to interpret the Constitution and its amendments Judicial activism- allows judges to interpret
the Constitution and its Amends. Should be able to apply the ideals of the
founding fathers to more current times
Freedom of Speech
Is the liberty to speak openly without fear of government restraint
Closely linked to the freedom of the press because this freedom includes both the right to speak and the right to be heard
Commonly called the freedom of expression
Freedom of Speech
Strict Scrutiny Legal standard applied to due process
analysis of fundamental rights The state must establish that it has a
compelling government interest that justifies the law in question
The law must be narrowly tailored to fit that interest
High standard and difficult to defend
Restrictions on Freedom of Speech Constitutional rights are NOT absolute There are reasonable limits, when the
government has a legitimate interest, are placed on where things can be said and, on what can be said Mostly occur in time of war
Restrictions on Freedom of Speech Espionage Act 1917- made illegal
interference with recruiting or drafting soldiers or any act that adversely affected military moral
Schenck v. United States (1919) Was charged with espionage for distributing
flyers that encouraged young men to resist the draft
This is an example when the good of the greater whole outweighs the rights of the individual
Restrictions on Freedom of Speech Clear and present danger test-
whether words are so potentially dangerous as to not be protected by the 1st Amendment Yelling “fire” in a crowed theater 1940 Smith Act-
Declared advocating the overthrow of the government by force or violence to be unlawful
Restrictions on Freedom of Speech Clear and probable danger test- whether the
gravity of the evil discounted by its improbability justifies an invasion of free speech necessary to avoid any danger
Brandenburg v. Ohio (1969) The court adopted a new test that replaced the “clear
and present danger test” Imminent lawless action test- 3 part test the
government must meet if certain communication is not protected under 1st Amendment1. Speaker subjectively intended incitement2. The words used were likely to produce imminent lawless
action3. Words used by the speaker objectively encouraged and
urged incitement
Restrictions on Freedom of Speech Balancing test- position taken by the
appellate courts to balance the needs of society for law and order and for effective law enforcement against the privacy rights of individuals
Preferred freedoms approach – a position that stresses that civil liberties are to take precedence over other constitutional values because they are requisite to a democracy
First Expression Rights of Public Employees Constitutional rights can be applied
differently based on one’s profession As public employees, law enforcement
officers’ speech is protected under the First Amendment only if it is 1) matter of public concern 2) unrelated to employment
Symbolic Expression
Symbolic speech is A form of speech that expresses an idea or
emotion without the use of words Fall within the protection of the First
Amendment Examples of symbolic speech include
Flag burning Cross Burning Nude Dancing Yard Signs
Flag Burning
1969 Street v. New York- a flag was burned in protest and was arrested for malicious mischief. In NY, the law made acting out verbally or symbolically a crime
1989 Texas v. Johnson Set American Flag on fire
Supreme Court said not guilty under 1st Amendment
Flag Burning
1989 Congress pass a flag protection act
1990 declared it unconstitutional as an unwarranted restriction on symbolic expression
Cross Burning
St. Paul, MN Teenager arrested for burning a cross in yard
of a black family County district judge said ordinance was
unconstitutional State supreme court reversed decision Supreme Court held ordinance was
unconstitutional because it prohibits permitted speech solely on the basis of the subjects the speech addresses. Cross burning is deemed a protected form of speech
Nude Dancing
In 1991 the Supreme Court took up the question of nude dancing as a form of symbolic speech
An Indiana law requiring dancers to wear pasties and a g-string did not violate the dancers freedom of speech
There can be restrictions of totally nude entertainment
Yard Signs
1994- Supreme Court ruled that cities may not prohibit residents from putting political or personal signs in their yards
Freedom of Speech and the Internet In 1997 the Supreme Court struck down a
law banning computer generated child pornography
Currently Congress is considering legislation to address the problem of Internet spam
In another case the Court held that Congress can limit funding to libraries that did not filter Internet access to block obscene material and child pornography without violating the First Amendment
The Right to Photograph
As a result of terrorist activities law enforcement agencies have become vigilant against those people who are taking pictures of government properties
Videotaping law enforcement officers in the line of duty Prosecutors across the country claim that
videotaping police officers violates wiretap laws
No cases look at by the Supreme Court yet
Freedom of the Press
Is related to freedom of speech because speech is not considered only spoken words, but any means of conveying information
Right to publish is not absolute Government has restricted the right to
publish in 2 ways:1. Publishing certain materials (prior restraint)2. Punishing those who publish matter
considered seditious, libelous or obscene
Freedom of the Press
Near v. Minnesota (1931) ruled that no newspaper could be banned
because of its contents, regardless of how scandalous they might be
Miller v. California (1941) court clarified thee standards to define
obscenity by establishing a 3 part test: Whether the average person, applying
contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest, that is, having a tendency to excite lustful thoughts
Freedom of the Press
Restrictions of the press often occur during national emergencies WWI- led to first clear articulation of the
limits to freedom of speech WWII- press was curtailed for security
reasons In 1971, the government attempted to stop
the publication of the Pentagon Papers saying that it could endanger national security
Other than wartime, censorship for national security reasons has been carefully limited
Balancing Freedom of the Press with the Right to Fair Trial A free press, vital to the functioning of a
democracy, keeps citizens fully informed and able to discharge their civic responsibilities
Defendants in criminal cases are guaranteed due process of law and a fair and impartial trial
These guarantees are jeopardized when the media publish detailed information before a defendant is tried.
Balancing Freedom of the Press with the Right to Fair Trial The court has a duty to protect those who come
before it from undue adverse publicity Failure to do so may result in a higher court
declaring that the trial was unfair and overturning the conviction
The Media and Coverage on Criminal Investigations At times reporters’ First Amendment rights of
freedom of the press can come into conflict with law enforcement’s responsibility to investigate crimes without violating a suspect’s Sixth Amendment right to a fair trial.
Right to Peaceful Assembly
People do have an expectation they can gather to interact, speak among themselves and make their thoughts and ideas known
The right to assemble does not necessarily require an intent to engage in some specific activity, although when it does, the activity cannot be illegal
The right to peaceful assembly was made applicable to the states via incorporation in DeJonge v. Oregon (1937)
Freedom of Association
Freedom of association was extended to the states in NAACP v. Alabama (1958)
First Amendment Rights of Prisoners Prisoners are using this “due process
revolution” to have the courts rule on First Amendment issues related to correctional clients
The courts have used the Rational Basis test to uphold prison regulations that are “reasonably related to legitimate penological interests.”
Issues where the courts have ruled involve: censorship of mail, expression within the
institution, association within the institution, religion, appearance and visitation rights