Ch06

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


“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


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


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


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


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


“Congress shall make no law…prohibiting the free exercise [of religion]”

It involves both the freedom to believe and the freedom to act


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


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”


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


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


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


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


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

Ch06

Education

Transcript of Ch06