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

 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
Teachers’ Lounge
Political rights
•
Legal privileges
• Common law
•
Civil law

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.

 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.

Right
Amendment Year
5 1897 Public use and just compensation for the taking of private property by the government.
Freedom of speech 1 1925
Freedom of the press
Fair trial
Freedom of religion
Freedom of assembly
Free exercise of religion
Separation of religion and government
Right to a public trial
Right against unreasonable searches and seizures 4
Freedom of association 1
1
6
1
6
1
1
1
1931
1932
1934
1937
1940
1947
1948
1949
1958

Exclusionary rule
Ban against cruel and unusual punishment
Right to counsel in felony case
Right against self-incrimination
Right to confront witness
Right of privacy
Right to an impartial jury
Right to a speedy trial and compulsory process 6 for obtaining witnesses
4
8
6
5
6
1961
1962
1963
1, 3, 4, 5, 9 1965
6
1964
1965
1966
1967
Right to a jury trial in nonpetty cases
Protection against double jeopardy
Right of an individual to "keep and bear arms"
6
5
1968
1969
2 2010

Freedom of Religion
• The Establishment Clause
–“Congress shall make no law respecting an establishment of religion….”
1. Aid to church-related schools
2. School vouchers Zelman v. Simmons-Harris (2002)
3. School prayer Engel v. Vitale
4. Prayer outside the classroom Lee v. Weisman
5. The Ten Commandments
6. Teaching evolution Edwards v. Aguilard
7. 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.

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
New York Times v.
•
Seditious libel
Defaming, criticizing, and
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

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

• 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.