First Amendment

First Amendment Freedoms 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.

The First Amendment Freedoms 1. The framers of the U.S. Constitution had constraining the national government as one of their foremost aims.

2. A list of fundamental rights that the government may not infringe on were not included in the main body of the Constitution. 3. Popular protest over the absence of this list of human rights led to the agreement to add the Bill of Rights.

4. Understanding of these civil liberties, these fundamental First Amendment rights, and the existence of a free society are paramount. 5. The Bill of Rights technically applied only to the national government. 6. The Fourteenth Amendment and interpretation of the due process clause led to the nationalization of the Bill of Rights through “selective incorporation.”

Rights in the Original Constitution 1. Habeas corpus 2. No bills of attainder 3. No ex post facto laws 4. No titles of nobility 5. Trial by jury in national courts 6. Protection for citizens as they move from one state to another, including the right to travel 7. Protection against using crime of treason to restrict other activities; limitation on punishment for treason 8. Guarantee that each state has a republican form of government 9. No religious test oaths as a condition of holding federal office 10.Protection against the impairment of contracts

The Bill of Rights  Debate over necessity at Constitutional Convention.  Guarantees specific rights and liberties.  Ninth Amendment states other rights exist.  Tenth Amendment reserves rights to states and people.

The Bill of Rights and the States •Civil liberties •Civil rights •Rights of persons accused of crimes •Political rights •Legal privileges

•Common law •Civil law

Teachers’ Lounge

The Bill of Rights was ratified a. by State legislatures prior to the signing of the Constitution. b.at the same time as the Constitution in 1787. c. after the signing of the Constitution, in 1791.

d.in the early nineteenth century.

Incorporation  Until 20th century, Bill of Rights did not apply to states.  14th Amendment’s due process clause raises questions.  Begins to apply after Gitlow v. New York (1925).  Case is first step in incorporation doctrine.  Not all guarantees have been incorporated.  Selective incorporation of fundamental freedoms.

Incorporation of Bill of Rights Right

Amendment Year

Public use and just compensation for the taking of private property by the government.

5

1897

Freedom of speech

1

1925

Freedom of the press

1

1931

Fair trial

6

1932

Freedom of religion

1

1934

Freedom of assembly

1

1937

Free exercise of religion

1

1940

Separation of religion and government

1

1947

Right to a public trial

6

1948

Right against unreasonable searches and seizures

4

1949

Freedom of association

1

1958

Incorporation of Bill of Rights Exclusionary rule

4

1961

Ban against cruel and unusual punishment

8

1962

Right to counsel in felony case

6

1963

Right against self-incrimination

5

1964

Right to confront witness

6

1965

Right of privacy

1, 3, 4, 5, 9

1965

Right to an impartial jury

6

1966

Right to a speedy trial and compulsory process for obtaining witnesses

6

1967

Right to a jury trial in nonpetty cases

6

1968

Protection against double jeopardy

5

1969

Right of an individual to "keep and bear arms"

2

2010

Freedom of Religion •The Establishment Clause –“Congress shall make no law respecting an establishment of religion….” 1. 2. 3. 4. 5. 6. 7.

Aid to church-related schools School vouchers - Zelman v. Simmons-Harris (2002) School prayer - Engel v. Vitale Prayer outside the classroom - Lee v. Weisman The Ten Commandments Teaching evolution - Edwards v. Aguilard Religious speech

Freedom of Religion •The Free Exercise Clause –“…or prohibiting the free exercise thereof.” • Guarantees the free exercise of religion; restrained when religious practices interfere with public policy. • The Religious Freedom Restoration Act • Free Exercise in the Public Schools

First Amendment: Establishment  Prevents government from establishing religion.  Have been years of debate over scope of clause.  Lemon test (1971) sets clearest boundaries.  Secular, no religious effect, no entanglement.  Applied most frequently to religious schools.  Aid used to be books only; has been broadened.  Also limits other actions, e.g. prison ministries.

The “establishment clause” a.prohibits the establishment of a state religion. b.provides a wall of separation between church and state. c. was furthered by the Lemon v. Kurtzman decision. d. all of the above.

The Supreme Court has limited recitation of prayers in public schools primarily on the basis of. a. the establishment clause. b. the free exercise clause.

c. freedom of speech. d. the right to privacy.

The Supreme Court maintains that the establishment clause prevents all of the following evils EXCEPT. a. sponsorship b. financial support c. active involvement of the government in religious activity d. accommodating to religious needs

The relationship between the state and religion is addressed in a. the clear and present danger clause. b. the establishment clause.

c. the free exercise clause. d. both b and c.

First Amendment: Free Exercise  Government cannot interfere with religious practice.  Is not absolute; necessity can outweigh freedom.  Still, laws must be neutral toward religion.

Key Supreme Court Cases and Legislation • Employment Division v. Smith (1990) – Discards the compelling governmental interest test for overriding the interests of religious minorities • Religious Freedom Restoration Act (1993) – Attempted to override the Smith decision

The “free exercise” clause precludes all of the following EXCEPT. a. a requirement of a religious oath as a condition of public service. b. denying persons certain rights because of their beliefs or lack of them. c. discrimination based on religious belief systems rather than adherence to a formal creed. d. a requirement of a religious oath for public school teachers.

The free exercise clause has been interpreted by American courts to mean that a. no conduct motivated by religion is subject to state authority.

b. people must keep their opinions about religion to themselves. c. Amish may take their children out of public schools after the eighth grade. d. although religious beliefs cannot be regulated, religious conduct may be.

Free Speech and Free People •Judging: Drawing the line •Historical Constitutional Tests •The Clear and Present Danger Test •Schenck v. United States (1919)

•The Bad Tendency Test •Whitney v. California (1927)

•The Preferred Position Doctrine

The most controversial freedom associated with expression is that of a. beliefs

b. actions c. speech

d. press

Which of the following affects free speech? a. The Bad Tendency Test b. The Clear and Present Danger Test

c. The Preferred Position Doctrine d. all of the above

The Bad Tendency doctrine gives to ______ the power to decide what kinds of speech can be outlawed. a. courts b. legislatures

c. the people d. chief executives

The limits of free speech were set forth as the ______________ test by Justice Holmes in Schenck v. United States. a. The Bad Tendency Test b. The Clear and Present Danger Test

c. The Preferred Position Doctrine d. Freedom of Information Act

The Clear and Present Danger doctrine has been related to all of the following EXCEPT

a. hate-speech codes at a university.

b. insulting racial remarks in public. c. insulting sexual remarks in public.

d. insults directed at candidates for public office.

The doctrine that free speech cannot be restricted unless there is a close connection between a speech and illegal action is called

a. the Clear and Present Danger test. b. the speech and dangerous result test. c. the speech and action test. d. absolutist doctrine.

Nonprotected Speech These types of speech are without social value:

•Libel - Written defamation of another person.

Especially in the case of public officials and public figures, the constitutional tests designed to restrict libel actions are very rigid

•Seditious libel - Defaming, criticizing, and

New York Times v. Sullivan

advocating the overthrow of the government

•Obscenity and Pornography

Miller v. California

•Fighting Words - Words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence

•Commercial Speech - Advertisements and commercials for products and services; they receive less First Amendment protection, primarily to discourage false and misleading ads

Nonprotected & Protected Speech Doctrines used to measure limits of governmental power to regulate speech •Prior restraint is presumed unconstitutional •Laws must be content (or viewpoint) neutral

The current standards for obscenity are made a. by the Supreme Court b. at the state level c. at the community level d. by Congress

Currently Supreme Court guidelines related to obscenity: a. assume that obscenity is protected by the U.S. Constitution b. allow for the application of community standards c. do little to allow for restriction of child pornography d. find it easy to separate the obscene from that which is not

Persons may be convicted for one of the following a. possessing obscene materials b. selling obscene literature

c. importing obscene literature from abroad d. writing obscene material

All of the following are forms of non-protected speech except a. libel b. symbolic speech c. obscenity d. commercial speech

© Bob Kusel /SIPA

Freedom of the Press •Does the Press Have the Right to Withhold Information? •Does the Press Have the Right to Know? •Free Press Versus Fair Trials

• Film censorship – Gradually films have been protected – Still can be censored by the government

• Media claims for special rights – Reporter’s privilege – Press Shield Laws

In 2005, New York Times reporter Judith Miller was jailed for two months for refusing to disclose her sources to a grand jury

Which of the following statements is true: a. The First Amendment prevents the FCC from refusing to renew a radio license if in its opinion a broadcaster has not served the public interest. b. The federal regulation of radio and television is based on the scarcity of broadcast channels available. c. Current federal laws protect commercial speech. d. Household censorship is unconstitutional.

Which of the following is true? a. The mere fact that a statement is wrong or even defamatory is not sufficient to sustain a charge of libel. b. The 1966 Freedom of Information Act make most nonclassified records of federal agencies public. c. In a past decision the Supreme Court did not support barring of the press from a criminal case. d. All of the above.

Other Media and Communications •The Mails •Handbills, Sound Tracks and Billboards A state cannot restrain the distribution of leaflets merely to keep its streets clean

•Motion pictures and plays Constitutionally protected

•Broadcast and Cable Communications Of all mass media, broadcasting receives the least First Amendment protection

Regulated by the FCC

•Telecommunications and the Internet Generally unsuccessful to regulate Reno v. American Civil Liberties Union (1997)

Which of the following is true? a. Congress has not declared use of the Internet to knowingly transmit indecent materials to minors a federal crime. b. Pornographic books and x-rated movies are entitled to less protection than political speech. c. Censorship of the mails is constitutional.

d. Cities may not regulate by zoning where adult motion picture theaters may be located.

Freedom of Assembly •Public Forums and Time, Place, and Manner Regulations  Assembly and petition have been controversial.  Tied closely to speech and press.

 If speech crosses line, protection may not exist.

Reasonable restrictions on assemblies: • • • •

Time Place Manner Civil Disobedience

Freedom to Assemble & Petition the Government • The Supreme Court has held that state and local governments cannot bar individuals from assembling. – Street gangs – Online assembly

• Recent Court Decisions: – Synder v. Phelps

Which of the following is true? a. The right to assemble and to petition includes the right to trespass on private property. b.The right to assemble peaceably applies not only to meetings in private homes, but to gatherings held in public streets. c. In general, peaceful civil disobedience is a protected right. d.Seditious speech is protected when it advocates violence.