Transcript 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.