1ST AMENDMENT
Why the Bill of Rights?

Designed to protect Americans against the overuse
of power by the federal government.
14th Amendment (equal protection under law)
applies the protections in the Bill of Rights to state and
local governments (including public schools).
 The
3 Basic Constitutional Principles
1. Constitutional rights are NOT absolute.
 The
unrestricted exercise of certain rights would
eventually restrict the rights of others.
 You can exercise your rights until the point that it
infringes on the rights of others, endangers public
safety, or breaks the law.
 Ex:
You cannot claim that the use of an illegal drug is
protected by freedom of religion, because the use of the
drug breaks drug laws.
 Ex: You cannot yell “FIRE!” in a public building and claim it is
protected by freedom of speech/expression, because the
exclamation endangers public safety.
3 Basic Constitutional Principles
2. The Constitution protects citizens from certain actions by the
government, not other citizens, businesses, or organizations.


Ex: the 4th Amendment protects you from unreasonable
searches/seizures by the government, not private citizens. A
robber’s actions do not violate the 4th Amendment.
Many private actions (though not unconstitutional) have been
made unlawful by congressional or state legislative action

Ex: The 14th Amendment provides that everyone is treated equally
under the law, therefore voting discrimination based on race/sex
is unconstitutional. However, the 14th Amendment did not apply to
the hiring practices of private companies. LAWS were passed to
ban discrimination in hiring procedures.
3 Basic Constitutional Principles
3. There are rights retained by individuals that are
NOT explicitly written in the Constitution.


Remember the 9th Amendment?
Ex: Right to privacy
The
st
1
Amendment
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.
Freedom of Speech and Expression
Freedom of Speech/Expression

What types of speech and expression are protected by
the 1st Amendment?

Speeches and interviews (can be controversial)
Ex: Phil Robertson’s comments on homosexuality and civil rights in
his infamous GQ interview
 Ex: Daily Show “Words with Fringe”

Books, newspapers, and internet publications
 Art and music
 TV and films
 Symbolic speech (conduct that expresses an idea)


Ex: flags, tape over mouth, etc.
Freedom of Speech/Expression

Why is freedom of speech important, even when
the speech/expression is unpopular?
 Provides
Americans with a “marketplace of ideas.”
 Instead of the gov’t establishing one notion of “truth,”
freedom of speech enables the truth to emerge from
the presence and exchange of diverse opinions.
 Through
discussion, society can adapt to changing
circumstances without resorting to force or violence.
Restriction of Freedom of Speech

When a person speaks publicly, there are 2
elements interacting:
Speaker

Listener
Freedom of speech depends on how these elements
interact in different situations
 Remember,
not all rights are absolute.
Obscenity

Anything that treats sex or nudity in an offensive or
lewd manner, exceeds recognized standards of
decency, and lacks serious literary, artistic, political,
or scientific value.
 How
is pornography protected?
 What makes a word “obscene?”
Obscenity Test

Miller v. California (1957) – 3-part test to determine if
an expression is obscene.
1.
2.
3.

Would the average person applying contemporary
community standards find that the material, taken as a
whole, appeals to prurient (overly-sexual) interests?
Does the work depict or describe, in a patently offensive
way, sexual conduct specifically outlawed by applicable
state law?
Does the work, taken as a whole, lack serious literary,
artistic, political, or scientific value?
Yes to any of these questions  Obscene (but maybe
still protected by 1st Amendment.)

Time and context specific test.
Incitement Test

Brandenburg v. Ohio (1968) - 2-part test to
determine if speech incited dangerous or illegal
actions.
 Is
the speech "directed at inciting or producing imminent
lawless action?“ (for the purpose of encouraging illegal
actions)
 Is the speech "likely to incite or produce such action?“
(likely to result in illegal actions)

Yes to either of these questions  NOT protected
by 1st Amendment.
Landmark SC Cases – Speech,
Obscenity, and Incitement

Texas v. Johnson (1988)
Background
Johnson burned an
American flag on the
steps of Dallas City Hall
to protest President
Reagan’s administration.
Tried and convicted of
criminal activity due to a
Texas law outlawing flag
desecration  1 year in
jail + $2000 fine
Constitutional Question
Ruling
Is the desecration of the 5-4 in favor of Johnson
US flag a form of
expression protected by Johnson’s actions had a
the 1st Amendment?
distinctively political
nature and were not
inciting dangerous or
illegal actions
The gov’t can’t prohibit
the expression of an idea
simply because society
finds the idea itself
offensive.
Commercial Speech

Communication between businesses and consumers
 Ban
on commercial speech that is false or misleading
 Limits on commercial speech for certain products
 Ex:
Cigarettes cannot be advertised on TV.
•no advertisements on radio or TV programs or in any magazine publications which have
an audience that is under the age of 21
•no advertisements on Universities, Colleges or any other Schools in their programs for
theatrical performances, sport events etc.
•cannot represent cigarette smoking as the way to be cooler, better known to the opposite
sex or to get higher up on the social ladder
•actors or models in cigarettes ad campaigns have to be at the very least 25 years old
•ads cannot depict any of them being described as an athlete or of having been in
athletic career fields.
Defamation

False expression about a person that
damages that person’s reputation
 NOT
protected by freedom of speech
 Spoken lies – slander
 Written lies – libel

If statement is proven to be true,
defamation has not occurred.
Hate Speech

Speech/expression motivated by bigotry and racism.
Protected by the 1st Amendment as long as it doesn’t incite
illegal actions or make others fear physical danger.
 While legal, it can be unpopular thus creating social
backlash.



Ex: Donald Sterling’s remarks on blacks
at Clippers games ARE PROTECTED by
the 1st Amendment, thus he will not
face criminal charges. HOWEVER, the
public reaction was incredibly negative
(effectively isolating him in the public
sphere and socially punishing him for
his remarks).
Ex: Westboro Baptist Church’s remarks
at funerals of soldiers  unpopular
but protected by freedom of speech.
Landmark SC Case – Hate Speech

Snyder v. Phelps (2010)
Background
Westboro Baptist Church
picketed at the funeral of
deceased Marine Matthew
Snyder
Family sued WBC for
defamation, emotional
distress, and invasion of
privacy
Snyder family awarded $5
million in damages
US Court of Appeals said
the judgment violated
WBC’s freedom of speech
Constitutional Question
Does the 1st
Amendment protect
protesters at a funeral
from liability for
intentionally inflicting
emotional distress on
the family of the
deceased?
Ruling
8-1 in favor of Phelps
(WBC)
The 1st Amendment
shields those who stage a
protest at the funeral of a
military service member
from liability, even if the
speech is found to be
“outrageous.”
Freedom
of Religion
•Right to believe and
practice any
religion/faith.
•Right to have no
religious beliefs at all.
Separation of Church and State
Not in the Constitution
Letter from Jefferson to the Danbury Baptist Association
in 1802
“Believing with you that religion is a matter which lies
solely between Man & his God, that he owes account
to none other for his faith or his worship, that the
legitimate powers of government reach actions
only, & not opinions, I contemplate with sovereign
reverence that act of the whole American people
which declared that their legislature should "make no
law respecting an establishment of religion, or
prohibiting the free exercise thereof," thus building a
wall of separation between Church & State.”
Why Freedom of Religion?
Protect religion from being corrupted by the
state
 Protect government from corruption caused by
religious conflicts

2 Pronged Freedom:
Establishment Clause

“Congress shall make no law respecting an
establishment of religion”
Prohibits the federal establishment of a national church
 Prohibits federal interference with existing state churches


How do we distinguish between acceptable and
unacceptable government involvement in religion?
The LEMON Test…
 The ENDORSEMENT Test…

Landmark SC Case – Gov’t State
Establishment of Religion

Lemon v. Kurtzman (1971)
Background
Constitutional Question
Ruling
PA and RI governments
gave financial support to
non-public schools
(“church-related
educational institutions”)
Did PA’s and RI’s laws
violate the
Establishment Clause by
making financial aid
available to private
religious schools?
8-1 in favor of Lemon
The aid is unconstitutional
because the laws don’t
have a primarily secular
purpose and it
favors/advances one
religion.
Created the LEMON Test
The Lemon Test


Lemon Test – 3-part test to determine if laws violate
the Establishment Clause
“A law is constitutional if it…”
Has a primarily secular (non-religious) purpose.
 Neither principally aids nor harms religion
 Prevents the gov’t from become excessively entangled with
religion.


Law must pass ALL 3 parts.
Landmark SC Case – Gov’t State
Endorsement of Religion

Lynch v. Donnelly (1984)
Background
Constitutional Question
Ruling
Rhode Island’s Pawtucket
Mayor (Lynch) defended
a Santa Claus house, a
Christmas tree, a nativity
scene, and a banner
reading “Season’s
Greetings” placed in a
major shopping district.
Did the inclusion of the 5-4 in favor of Lynch
nativity scene in the
city’s display violate the The display did not
Establishment Clause? advocate a particular
religious message and it
had “legitimate secular
purposes” and was
traditionally in place
every season.
Created the
ENDORSEMENT Test
The Endorsement Test

Endorsement Test – “A government action is
unconstitutional if it creates a perception in the mind
of a reasonable observer that the government is
either endorsing or disapproving of religion.”
 VAGUE
– often contested.
 Recent SC decision (5-4) allowing prayer at the
beginning of gov’t meetings even if it plainly favors a
specific religion
2 Pronged Freedom:
Free Exercise Clause

“Congress shall make law… prohibiting the Free
Exercise thereof…”
 Prohibits
federal interference with an individual’s
religious practice
 NOT ABSOLUTE - Free to practice until illegal activities
are committed, public safety is endangered, or the
rights of others are infringed upon.
Landmark SC Case – Freedom of
Religious Exercise

Employment Division v. Smith (1989)
Background
Constitutional Question
Ruling
2 Native Americans
employees at a private
drug rehabilitation
facility, ingested peyote
(hallucinogen) as part of
a religious ceremony and
were subsequently fired.
Can a state deny
unemployment benefits
to a worker fired for
using illegal drugs for
religious purposes?
6-3 in favor of
Employment Division
They filed a claim for
unemployment benefits
but the gov’t denied the
claim due to the
“misconduct.”
Individuals are free to
exercise their religious
practices, per the Free
Exercise Clause.
However, this right ends
when the exercise violates
established laws.
Freedom of the Press
Why Freedom of Press?

To protect the right to obtain and publish
information or opinions without government
censorships or fear of punishment.
 Prevent
government corruption/abuse of power.
 Create transparency in society about facts and opinions
History of Freedom of the Press

1773 – John Peter Zenger
German immigrant, printed
the New York Weekly Journal
 Printed articles harshly
criticizing the corrupt royal
Governor (accused him of
rigging elections and other
crimes)
 Jailed for criticizing the gov’t
and refusing to name the
anonymous authors 
charged with LIBEL


At the time, a libel charge was
brought against anyone
criticizing the gov’t (regardless
of truth or falsity)
History of Freedom of the Press

Zenger’s Trial (1733)





Jury originally packed with people
paid by the Governor
Zenger’s wife published articles
about the unfairness of the trial 
new jury with unbiased peers and
new attorney
Attorney admitted that Zenger
printed the articles BUT demanded
the prosecution prove they were
untrue.
Judge ordered jury to convict
Zenger if they believed he
published the articles
Jury said NOT GUILTY 
precedent for freedom of the
press
Landmark SC Cases – Press Freedoms

Near v. Minnesota (1929)
Background
Constitutional Question
Jay Near published a
scandal sheet in
Minneapolis, accusing
local officials of being
involved with “gangsters”
Does the Minnesota gag 5-4 in favor of Near
law violate the free
press provision of the The state law was
1st Amendment?
unconstitutional as the
government could not
censor or prohibit a
publication when it simply
doesn’t agree with the
text.
Minnesota officials
obtained an injunction to
prevent Near from
publishing the articles
based on a state gag
law prohibiting publishing
“lewd” or “nuisance”
materials.
Ruling
Freedoms Worldwide
Where does the US stand in relation to other
countries concerning freedom of speech, religion,
and press?
-2.5 (weak) to +2.5 (strong)
This map shows "Voice and Accountability", a dimension of governances in Worldwide
Governance Indicators (WGI) project by World Bank Group, which reflects perceptions of the
extent to which a country's citizens are able to participate in selecting their government, as
well as freedom of expression, freedom of association, and a free media.
Religious Freedom/Restriction Worldwide
Discrimination against all religions and interference with religious freedom
Favors religion of majority and interferes with or limits freedom of other religions
Favors religion of majority but tolerates other religions
Tolerates all religions
What is Press Freedom Index?
The Press Freedom Index is an annual ranking of countries compiled and published by Reporters
Without Borders based upon the organization's assessment of their press freedom records. It
reflects the degree of freedom journalists and news organizations enjoy in each country, and
the efforts made by the state to respect and ensure respect for this freedom.