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Presentation Plus! United States Government: Democracy in Action
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Making It Relevant 13
Constitutional Rights
• The Constitution of the United States
guarantees basic rights in the Bill of
Rights, composed of the first 10
amendments, and in several additional
amendments. 
• When the Constitution was submitted to
the states for ratification, a number of
states refused to approve the new
Constitution unless a bill of rights was
added.
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Introduction
• The Constitution guarantees religious
freedom in the First Amendment. 
• The first clause of the amendment, known
as the establishment clause, states that
“Congress shall make no law respecting an
establishment of religion.” 
• The second clause, labeled the free
exercise clause, prohibits government
from unduly interfering with the free
exercise of religion. 
• Interpretation of these clauses underlies a
continuing debate in American politics.
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The Establishment Clause
• By the time of the Constitution, history had
taught the Founders that freedom of
religion necessarily led to religious
diversity. 
• The establishment clause supports this
aspect of religious freedom. 
• Thomas Jefferson and others, however,
believed that the First Amendment also
builds “a wall of separation between
Church and State.” 
• Just what that “wall of separation” means
has been the subject of controversy.
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Religion in Public Life
• In practice, religion has long been part of
public life in the United States. Since 1864
most of the nation’s coins have carried the
motto “In God We Trust.” 
• Government actually encourages religion in
some ways. For example, most church
property and contributions to religious
groups are tax-exempt.
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Religion in Public Life (cont.)
• Attempting to define the proper
distance between the church and state
often results in controversy, and the
task of resolving these controversies
falls on the Supreme Court.
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Everson v. Board of Education
• Everson v. Board of Education (1947)
involved a challenge to a New Jersey law
allowing the state to pay for busing
students to parochial schools, schools
operated by a church or religious group. 
• The law’s critics contended that the law
amounted to state support of a religion, in
violation of the establishment clause. 
• The Court ruled, however, that the New
Jersey law was constitutional, benefiting
students rather than aiding a religion
directly.
Click the blue hyperlink to explore the Supreme Court case.
State Aid to Parochial Schools
• Some of the most controversial debates
over church-state relations have focused
on the kinds of aid government can give
church-related schools. 
• In Board of Education v. Allen (1968) the
Court upheld state programs to provide
secular, or nonreligious, textbooks to
parochial schools.
Click a blue hyperlink to explore the Supreme Court case.
State Aid to Parochial Schools (cont.)
• Although the Everson decision permitted
state-supported bus transportation to and
from school, Wolman v. Walter (1977)
banned its use for field trips. 
• Why are some forms of aid constitutional
and others not? The answer is in the
so-called Lemon test. 
• Since the 1971 case of Lemon v.
Kurtzman, the Court has used a threepart test to decide whether such aid
violates the establishment clause.
Click a blue hyperlink to explore the Supreme Court case.
State Aid to Parochial Schools (cont.)
• To be constitutional, state aid to church
schools must… 
– have a clear secular, nonreligious purpose. 
– neither advance nor inhibit religion. 
– avoid “excessive government entanglement
with religion.” 
• In Levitt v. Committee for Public
Education (1973), for example, the Court
voided a New York plan to help pay for
parochial schools developing testing
programs.
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Engel v. Vitale
• In 1962 and 1963 the Court handed
down three controversial decisions
affecting prayer and Bible reading in
public schools. 
• The first was Engel v. Vitale, a school
prayer case that began in New York
State. 
• The New York Board of Regents
composed a nondenominational prayer
that it urged schools to use. 
• In 1962 the Court declared the regents’
prayer unconstitutional.
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Other School Prayer Cases
• In 1963 the Court combined a
Pennsylvania case–Abington School
District v. Schempp–and one from
Maryland–Murray v. Curlett–for another
major decision on school prayer. 
• In these cases the Court banned schoolsponsored Bible reading and recitation of
the Lord’s Prayer in public schools.
Click a blue hyperlink to explore the Supreme Court case.
Equal Access Act
• An exception to the Court’s imposed
limits on prayer in public schools is the
Equal Access Act passed by Congress
in 1984. 
• The Act allows public high schools
receiving federal funds to permit student
religious groups to hold meetings in the
school.
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Equal Access Act (cont.)
• The bill’s sponsors made it clear that
they intended to provide opportunity
for student prayer groups in public
schools, a position that had
overwhelming support in both houses
of Congress. 
• The Court ruled the law constitutional in
1990, in Westside Community Schools
v. Mergens.
Click the blue hyperlink to explore the Supreme Court case.
Teaching the Theory of Evolution
• The Supreme Court also has applied the
establishment clause to classroom
instruction. 
• In Epperson v. Arkansas (1968) the
justices voided an Arkansas law that
banned teaching evolution in public
schools. 
• In Edwards v. Aguillard (1987) the Court
ruled that a law requiring the teaching of
creationism violated the establishment
clause because its primary purpose was
“to endorse a particular religious doctrine.”
Click a blue hyperlink to explore the Supreme Court case.
The Free Exercise Clause
• In addition to banning an established
church, the First Amendment forbids laws
“prohibiting the free exercise of religion.” 
• But in interpreting this free exercise clause,
the Supreme Court makes an important
distinction between belief and practice.
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Religious Practice May
Be Limited
• The Supreme Court has never permitted
religious freedom to justify any behavior,
particularly when religious practices
conflict with criminal laws. 
• The Court first dealt with this issue in
the case of Reynolds v. United States
(1879).
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Religious Practice May
Be Limited (cont.)
• George Reynolds, a Mormon who lived in
Utah, had two wives and was convicted of
polygamy. Reynolds’s religion permitted
polygamy, but federal law prohibited it. 
• He appealed his conviction to the Supreme
Court, claiming that the law abridged, or
limited, freedom of religion. The Court,
however, upheld his conviction.
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The Flag Salute Cases
• Two of the most-discussed free exercise
cases concerned whether children could be
forced to salute the American flag. 
• The first case began in 1936 when two
Jehovah’s Witnesses, Lillian and William
Gobitis, were expelled from school for
refusing to salute the flag. 
• In Minersville School District v. Gobitis
(1940) the Court upheld the school
regulation, ruling that the flag was a
patriotic symbol and requiring the salute
did not infringe on religious freedom.
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The Flag Salute Cases (cont.)
• The State Board of Education directed that
all students and teachers in West Virginia’s
public schools salute the flag and recite the
Pledge of Allegiance as part of regular
school activities. 
• When a member of Jehovah’s Witnesses
appealed the state’s requirement, the Court
overruled the Gobitis decision in West
Virginia State Board of Education v.
Barnette (1943).
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The Flag Salute Cases (cont.)
• The Court said that patriotism could be
achieved without forcing people to violate
their religious beliefs. 
• The Court usually follows precedent,
decisions made on the same issue in
earlier cases. 
• As one justice put it, however, “when
convinced of former error, this Court has
never felt constrained to follow precedent.”
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What is the difference between the
establishment clause and the free
exercise clause of the First Amendment?
The establishment clause prohibits the government
from establishing a state-supported religion. The
free exercise clause prohibits government from
unduly interfering with the free practice of religion.
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Why did the Court allow state-supported
bus transportation for parochial schools
but ban their use for field trips?
Use of transportation to and from school did not
serve a primarily religious purpose. Its use for field
trips might serve a religious purpose.
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End of Section 2
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Introduction
• Democratic government requires that every
person have the right to speak freely. 
• The First Amendment exists to protect
ideas that may be unpopular or differ from
the majority.
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Types of Speech
• The Supreme Court has distinguished two
general categories of speech that the First
Amendment protects. 
• The verbal expression of thought and
opinion before an audience that has
chosen to listen, or pure speech, is the
most common form of speech.
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Types of Speech (cont.)
• Because pure speech relies only on the
power of words to communicate ideas, the
Supreme Court traditionally has provided
the strongest protection of pure speech
against government control. 
• Symbolic speech (sometimes called
expressive conduct) involves using actions
and symbols, in addition to or instead of
words, to express opinions.
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Types of Speech (cont.)
• Because symbolic speech involves actions,
it may be subject to government
restrictions that do not apply to pure
speech. 
• The Supreme Court has generally followed
a three-part test, established in the case of
United States v. O’Brien (1968), when
reviewing cases involving expressive
conduct.
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Types of Speech (cont.)
• In that case the Court ruled that a
government can regulate or forbid
expressive conduct if the regulation… 
– falls within the constitutional power of
government. 
– is narrowly drawn to further a substantial
government interest that is unrelated to the
suppression of free speech. 
– leaves open ample alternative channels of
communication.
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Types of Speech (cont.)
• Since the O’Brien decision the Court has
said the First Amendment protected the
right to wear black armbands in high
schools to protest the Vietnam War
(Tinker v. Des Moines School District,
1969). 
• In Texas v. Johnson (1989) it held flag
burning was protected symbolic speech. 
• The Court reaffirmed this position in
United States v. Eichman (1990),
declaring the federal Flag Protection Act of
1989 unconstitutional.
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Regulating Speech
• Because the rights of free speech must be
balanced against the need to protect
society, some restraints on speech exist. 
• Congress and state legislatures, for
example, have outlawed seditious
speech–any speech urging resistance to
lawful authority or advocating the
overthrow of the government.
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Regulating Speech (cont.)
• During the twentieth century the Court has
developed three constitutional tests to
establish limits on speech: 
– the “clear and present danger” rule 
– the bad tendency doctrine 
– the preferred position doctrine
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Clear and Present Danger
• When the speech in question clearly
presents an immediate danger, the First
Amendment does not protect it. 
• Justice Oliver Wendell Holmes, Jr.,
developed the “clear and present
danger” test in Schenck v. United
States (1919).
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The Bad Tendency Doctrine
• Some Supreme Court justices considered
the “clear and present danger” principle
insufficient to protect the federal
government’s substantial interests. 
• In the case of Gitlow v. New York (1925),
the Court held speech could be restricted
even if it had only a tendency to lead to
illegal action, establishing the bad
tendency doctrine. 
• This doctrine has not generally had the
support of the Supreme Court itself since
the 1920s.
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The Preferred Position Doctrine
• First developed by the Court during the
1940s, the preferred position doctrine
holds that First Amendment freedoms are
more fundamental than other freedoms
because they provide the basis of all
liberties. 
• Any law limiting these freedoms should be
presumed unconstitutional unless the
government can show it is absolutely
necessary.
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Sedition Laws
• In the 1940s and 1950s, Congress passed
three sedition laws that applied in
peacetime as well as during war. 
• One of these, the Smith Act, made it a
crime to advocate revolution. 
• In Dennis v. United States (1951) the
Court applied the “clear and present
danger” test to uphold the conviction of
11 Communist Party leaders under the
act.
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Sedition Laws (cont.)
• In Yates v. United States (1957) the Court
overturned convictions of several other
Communist Party members, deciding that
merely expressing the opinion that the
government should be overthrown cannot
be illegal. 
• In Brandenburg v. Ohio (1969) the Court
further narrowed its definition of seditious
speech. 
• When Clarence Brandenburg, a Ku Klux
Klan leader, refused a police order to end a
rally and cross burning, he was arrested.
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Sedition Laws (cont.)
• The Court ruled in his favor, however,
stating that advocating the use of force
may not be forbidden “except where such
advocacy is directed to inciting or
producing imminent lawless action and is
likely to produce such action.”
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Other Speech Not Protected
• Other forms of speech are less protected
than so-called seditious speech.
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Defamatory Speech
• The First Amendment does not protect
defamatory speech, or false speech that
damages a person’s good name, character,
or reputation. 
• Defamatory speech falls into two
categories. Slander is spoken; libel is
written.
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Defamatory Speech (cont.)
• In New York Times Co. v. Sullivan
(1964) the Court determined that even if
a newspaper story about an Alabama
police commissioner were false, it was
protected speech unless the statement
was made with the knowledge that it was
false, or with reckless disregard of
whether it was false or not.
Click the blue hyperlink to explore the Supreme Court case.
Defamatory Speech (cont.)
• The Court allowed some defamatory
speech about public officials for fear that
criticism of government, a basic
constitutional right, might be silenced if
individuals could be sued for their
statements. 
• In later years the justices have extended
this protection to statements about public
figures in general, such as political
candidates, professional entertainers and
athletes, and even private citizens who
become newsworthy.
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Defamatory Speech (cont.)
• In Hustler Magazine v. Falwell (1988), for
example, the Court ruled that Reverend
Jerry Falwell, a televangelist, could not
collect damages for words that might
intentionally inflict emotional distress.
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“Fighting Words”
• In Chaplinsky v. New Hampshire (1942)
the Supreme Court ruled that words that
are so insulting that they provoke
immediate violence do not constitute
protected speech.
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Student Speech
• Two Court decisions have greatly narrowed
students’ First Amendment rights while
expanding the authority of school officials. 
– In Bethel School District v. Fraser (1986) the
Court ruled the First Amendment does not
prevent officials from suspending students for
lewd or indecent speech at school events, even
though the same speech would be protected
outside the school building. 
– In Hazelwood School District v. Kuhlmeier
(1988) the Court held that school officials have
sweeping authority to regulate student speech in
school-sponsored newspapers, theatrical
productions, and other activities.
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How has the Supreme Court applied the
principles of “clear and present danger”
and the bad tendency doctrine in
determining free speech?
The Court ruled that when speech clearly presents
an immediate danger, the First Amendment does
not protect it. Another ruling established that
speech could be limited if it had a tendency to lead
to illegal action.
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What speech is protected by the First
Amendment, and what speech is not
protected?
Pure and symbolic speech are protected unless
they can be proven to be seditious, defamatory, or
meant to provoke violence. Limited student
speech is protected.
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End of Section 3
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Introduction
• At times, the right of the press to gather
and publish information conflicts with other
important rights. 
• Most of the time freedom of the press is
protected because it is closely related to
freedom of speech. 
• Freedom of the press moves free speech
one step further by allowing opinions to be
written and circulated or broadcast.
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Prior Restraint Forbidden
• In many nations prior restraint–
censorship of information before it is
published–is a common way for
government to control information and
limit freedom. 
• In the United States, however, the
Supreme Court has ruled that the press
may be censored in advance only in cases
relating directly to national security.
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Near v. Minnesota
• Near v. Minnesota (1931) concerned a
Minnesota law prohibiting the publication of
any “malicious, scandalous, or defamatory”
newspapers or magazines. 
• An acid-tongued editor of a Minneapolis
paper had called local officials “gangsters”
and “grafters.” Local officials obtained a
court injunction to halt publication. 
• By a 5-to-4 vote, the Supreme Court lifted
the injunction.
Click the blue hyperlink to explore the Supreme Court case.
New York Times Co. v.
United States
• The Supreme Court reaffirmed its position
in New York Times Co. v. United States
(1971)–widely known as the Pentagon
Papers case. 
• In 1971 a former Pentagon employee
leaked to the New York Times a secret
government report outlining the history of
United States involvement in the Vietnam
War.
Click the blue hyperlink to explore the Supreme Court case.
New York Times Co. v.
United States (cont.)
• This report, which became known as the
Pentagon Papers, contained hundreds of
government documents. 
• Realizing the Pentagon Papers showed
that former government officials had lied to
the American people about the war, the
New York Times began to publish parts of
the report.
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New York Times Co. v.
United States (cont.)
• The government tried to stop further
publication of the papers, arguing that
national security would be endangered and
that the documents had been stolen from
the Defense Department. 
• A divided Court rejected the government’s
claims, ruling that stopping publication
would be prior restraint.
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Fair Trials and Free Press
• In recent years the First Amendment right
of a free press and the Sixth Amendment
right to a fair trial have sometimes
conflicted.
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Sheppard v. Maxwell
• Pretrial and courtroom publicity and news
stories about the crime can make it difficult
to secure a jury capable of fairly deciding
the case. 
• In Sheppard v. Maxwell (1966) the
Supreme Court overturned the 1954
conviction of Samuel H. Sheppard for just
such reasons.
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Sheppard v. Maxwell (cont.)
• In the Sheppard decision, the Court
described several measures judges might
take to restrain press coverage of a trial: 
– moving the trial to reduce pretrial publicity 
– limiting the number of reporters in the
courtroom 
– placing controls on reporters’ conduct in the
courtroom 
– isolating witnesses and jurors from the press 
– having the jury sequestered, or kept isolated,
until the trial is over
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Gag Orders Unconstitutional
• After the Sheppard case, a number of trial
judges began to use so-called gag orders
to restrain the press. 
• A gag order is an order by a judge barring
the press from publishing certain types of
information about a pending court case. 
• In October 1975 a man killed six members
of a Nebraska family. Details of the crime
were so sensational that a local judge
prohibited news stories about a pretrial
hearing.
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Protecting News Sources
• Many reporters argue they have the right
to refuse to testify in order to protect
confidential information and its source. 
• In 1972 the Supreme Court ruled the First
Amendment does not give special
privileges to news reporters. 
• To date, 30 states have passed shield
laws–laws that give reporters some
means of protection against being forced
to disclose confidential information or
sources in state courts.
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Free Press Issues
• In writing the First Amendment, the
Founders could not foresee the growth
of technology that has created new
instruments of mass communication–
and new issues regarding freedom of
the press.
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Radio and Television
• Because radio and television use public
airwaves, they do not enjoy as much
freedom as other press media. 
• Stations must obtain a license from the
Federal Communications Commission
(FCC), a government agency that
regulates their actions.
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Radio and Television (cont.)
• Congress has denied the FCC the right
to censor programs before they are
broadcast. 
• The FCC can, however, require that
stations observe certain standards. 
• In addition, it may punish stations that
broadcast obscene or indecent language. 
• The growth of cable television has raised
new questions.
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E-Mail and the Internet
• Should the Internet receive the same
freedom of speech safeguards the
Constitution gives to the media? 
• Congress passed the Communications
Decency Act to try to prevent children from
having access to indecency, but the
Supreme Court struck down this legislation
in Reno v. American Civil Liberties
Union (1997). 
• The Court held that speech on the Internet
was entitled to First Amendment protection.
Click the blue hyperlink to explore the Supreme Court case.
Obscenity
• The Supreme Court and most other courts
have supported the principle that society
has the right to protection from obscene
speech, pictures, and written material. 
• After many attempts to define obscenity,
the Court finally ruled in Miller v.
California (1973) that, in effect, local
communities should set their own
standards for obscenity.
Click the blue hyperlink to explore the Supreme Court case.
Advertising
• Advertising is considered “commercial
speech”–speech that has a profit motive–
and is given less protection under the First
Amendment than purely political speech. 
• In Bigelow v. Virginia (1975) the justices
permitted newspaper advertisements for
abortion clinics. Since then it has voided
laws that ban advertising medical
prescription prices, legal services, and
medical services.
Click the blue hyperlink to explore the Supreme Court case.
Obscenity (cont.)
• The Court has stepped in, however, to
overrule specific acts by local authorities,
making it clear that there are limits on the
right of communities to censor.
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What is the Supreme Court’s opinion
on prior restraint?
Information can be censored before its publication
only in cases relating directly to national security.
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How has the Supreme Court ruled when
the presence of the media could affect a
court trial?
Court decisions describe measures that judges
can take to restrict press coverage to guarantee a
fair trial, including limiting the number of reporters
in the courtroom and sequestering the jury.
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End of Section 4
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Introduction
• The First Amendment guarantees “the right
of the people peaceably to assemble, and
to petition the Government for a redress of
grievances.” 
• Freedom of assembly applies not only to
meetings in private homes but also to
those in public places. 
• It protects the right to make views known to
public officials and others by such means
as petitions, letters, lobbying, carrying
signs in a parade, or marching.
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Protecting Freedom of Assembly
• Freedom of assembly is a right closely
related to freedom of speech because
most gatherings, no matter how large or
small, involve some form of protected
speech.
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DeJonge v. Oregon
• In 1937 Dirk DeJonge was convicted for
conducting a public meeting sponsored by
the Communist Party. 
• In voting unanimously to overturn
DeJonge’s conviction, the Court ruled
Oregon’s law unconstitutional.
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DeJonge v. Oregon (cont.)
• DeJonge v. Oregon established two
legal principles: 
– The right of assembly was as important as the
rights of free speech and free press. 
– The due process clause of the Fourteenth
Amendment protects freedom of assembly
from state and local governments.
Click the blue hyperlink to explore the Supreme Court case.
Assembly on Public Property
• Freedom of assembly includes the right to
parade and demonstrate in public. 
• Because these forms of assembly usually
occur in parks, streets, or on sidewalks, it
is very possible they could interfere with
the rights of others to use the same
facilities. 
• Demonstrations, in particular, have a high
potential for violence because others,
holding conflicting beliefs, often launch
counter demonstrations.
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Assembly on Public Property (cont.)
• Parades and demonstrations generally are
subject to greater government regulation
than exercises of pure speech and other
kinds of assembly.
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Limits on Parades and
Demonstrations
• To provide for public order and safety,
many states and cities require that groups
wanting to parade or demonstrate first
obtain a permit. 
• The precedent for such regulation was set
in Cox v. New Hampshire (1941).
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Limits on Parades and
Demonstrations (cont.)
• Cox, one of several Jehovah’s Witnesses
convicted of violating a law requiring a
parade permit, challenged his conviction on
the grounds that the permit law restricted
his rights of free speech and assembly. 
• The Court voted to uphold the law, ruling
that the law was intended to ensure that
parades would not interfere with other
citizens using the streets.
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Additional Limits on
Public Assembly (cont.)
• Other Supreme Court decisions, however,
require that restrictions on freedom of
assembly be precisely worded and apply
evenly to all groups. 
• In Police Department of Chicago v.
Mosley (1972) the Court voided a city law
that banned all demonstrations near school
buildings except in the case of picketing–
patrolling an establishment to convince
workers and the public not to enter it–by
labor unions.
Click the blue hyperlink to explore the Supreme Court case.
Public Assembly and Disorder
• A basic principle of democracy is that
people have the right to assemble
regardless of the views they hold. 
• Police, however, sometimes have difficulty
protecting this principle when public
assemblies threaten public safety.
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The Nazis in Skokie
• In 1977 the American Nazi Party, a small
group patterned after Adolf Hitler’s German
Nazi Party, announced plans to hold a rally
in Skokie, Illinois, a largely Jewish suburb
of Chicago. 
• Skokie residents were outraged. Many
were survivors of the Holocaust, the mass
extermination of Jews and other groups by
the Nazis during World War II. 
• To prevent the march, the city required the
Nazis to post a $300,000 bond to get a
parade permit.
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The Nazis in Skokie (cont.)
• The Nazis claimed the high bond interfered
with their freedoms of speech and
assembly. 
• A federal appeals court ruled that no
community could use parade permits to
interfere with free speech and assembly.
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The Nazis in Skokie (cont.)
• The Skokie case illustrates a free speech
and assembly problem some scholars have
called the heckler’s veto, in which the
public vetoes the free speech and
assembly rights of unpopular groups by
claiming demonstrations will result in
violence.
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Feiner v. New York
• In 1950, speaking on a sidewalk in
Syracuse, New York, Irving Feiner verbally
attacked President Truman, the American
Legion, and the mayor of Syracuse. He
also urged African Americans to fight for
civil rights. 
• When the crowd grew hostile, someone
called the police. 
• When two officers arrived to investigate, an
angry man in the audience told them that if
they did not stop Feiner, he would.
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Feiner v. New York (cont.)
• The police asked Feiner to stop
speaking. When Feiner refused, the
police arrested him, and he was
convicted of disturbing the peace. 
• In Feiner v. New York (1951), the
Supreme Court upheld Feiner’s
conviction, ruling that the police had not
acted to suppress speech but to
preserve public order.
Click the blue hyperlink to explore the Supreme Court case.
Gregory v. City of Chicago
• In 1969 Dick Gregory, an entertainer and
African American activist, led a group of
marchers from the city hall in downtown
Chicago to the mayor’s home. 
• Calling city hall a “snake pit” and the mayor
“the snake,” the demonstrators began
parading around the block demanding the
ouster of the school superintendent for
failing to desegregate schools.
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Gregory v. Chicago (cont.)
• A crowd of 1,000 or more hostile onlookers
from the all-white neighborhood began to
heckle and throw rocks and eggs at the
marchers. 
• By 9:30 the police concluded that
violence was imminent and ordered the
demonstrators to disperse. When
Gregory and five others refused, they
were arrested and convicted of
disorderly conduct.
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Gregory v. Chicago (cont.)
• The case eventually reached the Supreme
Court as Gregory v. City of Chicago. 
• In a departure from the Feiner case,
the Court overturned the conviction of
Gregory and the marchers, ruling that
the demonstrators had been peaceful
and had done no more than exercise
their First Amendment right of assembly
and petition.
Click the blue hyperlink to explore the Supreme Court case.
Protection for Labor Picketing
• Workers on strike or other demonstrators
often organize picket lines. 
• Picketing conveys a message and is
therefore a form of speech and assembly. 
• But labor picketing, unlike most other kinds
of demonstrations, tries to persuade
customers and workers not to deal with a
business. 
• In Thornhill v. Alabama (1940) the
Supreme Court ruled that peaceful
picketing was a form of free speech.
Click the blue hyperlink to explore the Supreme Court case.
Freedom of Association
• Does the First Amendment protect an
individual’s right to join an organization that
the government considers subversive? 
• In the DeJonge v. Oregon (1937) case,
the Supreme Court extended the right to
freely assemble to protect the right of
individuals to freedom of association.
Click the blue hyperlink to explore the Supreme Court case.
Whitney v. California
• In Whitney v. California (1927) the
Supreme Court reviewed the case of
Charlotte Anita Whitney, who had attended
a convention where the Communist Labor
Party was organized. 
• Because the party advocated workers
using violent means to take over control of
property, Whitney was convicted of
breaking a California law concerning
violent actions.
Click the blue hyperlink to explore the Supreme Court case.
Whitney v. California (cont.)
• The clear and present danger doctrine
later became a major issue when the
government began to arrest and convict
accused subversives, primarily Communist
Party members during the 1950s. 
• The Alien Registration Act of 1940, known
as the Smith Act, contained a section that
made advocating forcible overthrow of any
government in the United States illegal.
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Whitney v. California (cont.)
• The Supreme Court upheld convictions of
12 leaders of the American Communist
Party under this act in Dennis v. United
States (1951). 
• In later cases, however, the Court ruled
that only actual preparations for the use of
force against the government were
punishable.
Click the blue hyperlink to explore the Supreme Court case.
What are the limits on public assembly?
Groups must obtain a permit; people may not
violate the intended use of the property, take over
private property for their own use, clash with the
rights of others, or endanger public safety.
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What constitutional protections are applied
to demonstrations by unpopular groups, or
to those who might incite violence?
The police may disperse a demonstration only to
preserve peace.
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End of Section 5
Click the mouse button to return to the Contents slide.
What four freedoms does the First
Amendment protect?
1. freedom of religion
2. freedom of speech
3. freedom of assembly
4. freedom of the press
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List four examples of how religion remains
part of government.
Most government officials take their oaths of office
in the name of God. The nation’s coins carry the
motto “In God We Trust.” The Pledge of Allegiance
contains the phrase “one nation under God.” Daily
sessions of Congress open with a prayer.
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What is the significance of Engel v.
Vitale?
Ruling in this 1962 case, the Supreme Court
outlawed prayer in public schools.
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Identify categories of speech that the
First Amendment protects and kinds it
does not protect.
Protected
Not Protected
pure speech
symbolic speech
seditious speech
defamatory speech
“fighting words”
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Under what circumstances would
criticism of a public official not be
defamatory speech?
If the statement, though false, was not made
with knowledge that it was false or with
reckless disregard for the truth, it falls under
protected speech.
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How might freedom of the press interfere
with an individual’s right to a fair trial?
The press might print or broadcast information
that might influence witnesses’ testimony,
prejudice jurors or prospective jurors, or
otherwise influence the trial’s outcome.
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Why is prior restraint forbidden in the
United States?
The free flow of information is basic to the
success of democracy, and prior restraint is
a method by which government controls
information.
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What is the Court’s position on
obscenity?
The Court has supported the principle that society
has the right to protection from obscenity, but it
generally has allowed local communities to set
their own standards for obscenity. The Court,
though, has overruled specific acts by local
authorities, making it clear there are limits on the
right of communities to censor.
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Why may government require that
groups first obtain permits to parade
or demonstrate?
Governments do this so they can make
arrangements for the public’s welfare, safety,
and protection.
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What is the significance of the Gregory
case in expanding the right to assemble?
Gregory provided that authorities cannot block
peaceful but unpopular assemblies merely
because they fear violence by a hostile public.
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What is the Supreme Court’s position
on picketing?
Picketing can involve more than just
communication. Therefore, picketing unrelated
to a labor dispute is not a First Amendment
right. Peaceful picketing, though, is a form of
free speech.
Click the mouse button or press the Space Bar to display the answer.
Compare the three tests for limiting
seditious speech.
Preferred position–relaxes limits
Clear and present danger–sets standards
Bad tendency–toughens limits
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Chapter Bonus Question
What are the three major religions
practiced in the United States today?
Christianity, Islam, and Judaism are the three
major religions in the United States today.
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End of Chapter Assessment
Click the mouse button to return to the Contents slide.
Section Focus Transparency 13-1 (1 of 2)
1. in 1833
2. the Civil War and the
emancipation of
enslaved African
Americans
3. Answers will vary but
should consider that
this ruling limited the
power of state and
local governments to
control speech and
expression.
Section Focus Transparency 13-1 (2 of 2)
Section Focus Transparency 13-2 (1 of 2)
1. less than one fourth
2. 4.6%
3. Answers will vary,
but possible
responses include
Native American
religions, Latter Day
Saints, Jehovah’s
Witnesses, Sikhs,
Bahai, and New Age
religions.
Section Focus Transparency 13-2 (2 of 2)
Section Focus Transparency 13-3 (1 of 2)
1. Congress passed the
Flag Protection Act of
1989.
2. It is considered to be
legal symbolic
speech.
3. Answers will vary but
should recognize that
the American flag is
one of the most
powerful and
important symbols of
the United States.
Section Focus Transparency 13-3 (2 of 2)
Section Focus Transparency 13-4 (1 of 2)
1. One possibility is
that pretrial publicity
may make it difficult
to find jurors who
have not already
formed an opinion.
2. Answers will vary,
but students should
demonstrate an
understanding of the
constitutional issues
that are involved.
3. Answer will vary, but
students should be
able to give
reasoned, thoughtful
answers.
Section Focus Transparency 13-4 (2 of 2)
Section Focus Transparency 13-5 (1 of 2)
1. number one and
possibly number four
2. number two because
it would be on private
property
3. number three
Section Focus Transparency 13-5 (2 of 2)
Abington School District v.
Schempp & Murray v. Curlett (1963)
These cases struck down a Pennsylvania statute
requiring public schools in the state to begin each school
day with Bible readings and recitation of the Lord’s
Prayer. Once again the Supreme Court ruled that the
business of government is not to craft and then mandate
religious exercises. It held that the establishment clause
leaves religious beliefs and religious practices to each
individual’s choice and expressly commands that
government not intrude into this decision-making
process.
Click the Section Start button to return to the lecture notes.
Epperson v. Arkansas (1968)
This case held that the state’s antievolution law violated
the establishment clause because its sole purpose was
to remove from the state’s public school curriculum a
scientific theory found objectionable by fundamentalist
Christians. The Supreme Court explained that the law
amounts to the state putting its authority behind a
particular religious viewpoint, a clear violation of the
establishment clause, which requires that government be
neutral with respect to all religious views and practices.
Click the Section Start button to return to the lecture notes.
Reynolds v. United States (1879)
This case was the first major Supreme Court case to
consider the impact of neutral laws of general application
on religious practices. (A neutral law of general
application is one that is intended to protect the public
health and safety and applies to everyone regardless of
religious belief or affiliation. Such a law is not intended
to affect adversely any religious belief or practice but
may have indirect adverse effects.) The case presented
a free exercise challenge by a Mormon to a federal law
making it unlawful to practice polygamy, i.e., marriage in
which a person has more than one spouse.
(Continued)
Click the Section Start button to return to the lecture notes.
Reynolds v. United States (cont.)
The Mormon religion permitted a male to have more than
one wife. The Court upheld the statute, saying that
Congress did not have the authority to legislate with
respect to religious beliefs but did have the authority to
legislate with respect to actions that “subvert good order.”
Click the Section Start button to return to the lecture notes.
Tinker v. Des Moines School
District (1969)
This case extended First Amendment protection to public
school students in the now-famous statement that “it can
hardly be argued that either students or teachers shed
their constitutional rights of freedom of speech or
expression at the schoolhouse gate.” The Supreme
Court then held that a public school could not suspend
students who wore black armbands to school to
symbolize their opposition to the Vietnam War. In so
holding, the Court likened the students’ conduct to pure
speech and decided it on that basis.
Click the Section Start button to return to the lecture notes.
Texas v. Johnson (1989)
This case held that burning an American flag is
expressive conduct protected by the First Amendment.
Expressive conduct, the Supreme Court explained, is
conduct that is intended by the actor to convey a
message, and the message that the actor intends to
convey is one that observers likely would understand.
The Court applied the O’Brien test (see United States v.
O’Brien) under which the government can punish a
person for conduct that might have an expressive
component as long as the punishment advances an
important government interest that is unrelated to the
content of speech.
(Continued)
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Texas v. Johnson (cont.)
The Court then reversed the conviction of Gregory
Johnson for “desecrating a venerated object”–burning an
American flag at the 1984 Republican National
Convention to protest the policies of the Reagan
administration. The Court explained that Johnson was
convicted solely because of the content of his speech, an
action which was enough to fail the O’Brien test.
Click the Section Start button to return to the lecture notes.
Schenck v. United States (1919)
This case upheld convictions under the Federal Espionage
Act. The defendants were charged under the Act with
distributing leaflets aimed at inciting draft resistance during
World War I; their defense was that their antidraft speech
was protected by the free speech clause. The Supreme
Court unanimously rejected the defense, explaining that
whether or not speech is protected depends on the context
in which it occurs. Here, said the Court, the context was
the nation’s war effort. Because the defendants’ anti-draft
rhetoric created a “clear and present danger” to the
success of the war effort, it was not protected speech.
Click the Section Start button to return to the lecture notes.
Gitlow v. New York (1925)
This case upheld a conviction for publishing articles that
advocated the violent overthrow of democratic
governments in general and the government of the
United States in particular. In upholding the defendant’s
conviction under New York’s so-called criminal anarchy
law, the Court again rejected a free-speech defense
while, at the same time, recognizing that the right of free
speech is fundamental. According to the Court, a state
legislature is entitled to take steps to prevent public
disorder and need not wait until revolution is imminent
before taking defensive action.
Click the Section Start button to return to the lecture notes.
Hustler Magazine v. Falwell
(1988)
This case held that public officials or public figures
subject to parody by the press cannot recover damages
(i.e., money) for the emotional distress caused by the
parody unless they can meet the standard set out in New
York Times Co. v. Sullivan (1964). In other words,
they would have to prove that the parody was false or
was published in reckless disregard of the truth or falsity
of its content.
Click the Section Start button to return to the lecture notes.
Bethel School District v.
Fraser (1986)
This case retreated from the expansive view of the First
Amendment rights of public school students found in
Tinker v. Des Moines School District (1969). Here the
Supreme Court held that a public high school student did
not have a First Amendment right to give a sexually
suggestive speech at a school-sponsored assembly, and
upheld the three-day suspension of the student who made
the speech. In deciding the case, the Court made it clear
that students have only a limited right of free speech.
According to the Court, a school does not have to tolerate
student speech that is inconsistent with its educational
mission, even if the same speech would be protected
elsewhere.
Click the Section Start button to return to the lecture notes.
Tinker v. Des Moines School
District (1969)
This case extended First Amendment protection to public
school students in the now-famous statement that “it can
hardly be argued that either students or teachers shed
their constitutional rights of freedom of speech or
expression at the schoolhouse gate.” The Supreme
Court then held that a public school could not suspend
students who wore black armbands to school to
symbolize their opposition to the Vietnam War. In so
holding, the Court likened the students’ conduct to pure
speech and decided it on that basis.
Click the Section Start button to return to the lecture notes.
Hazelwood School District v.
Kuhlmeier (1988)
This case continued the retreat begun in Fraser. The
Supreme Court held that public school officials, not
public high school students, are in control of the editorial
content of a student newspaper published as part of the
school’s journalism curriculum. Whatever First
Amendment rights public school students have, those
rights do not include deciding what will and will not be
published in a student newspaper that is tied to the
school’s curriculum.
Click the Section Start button to return to the lecture notes.
Reno v. American Civil
Liberties Union (1997)
This case tested the Communications Decency Act
(1996) that made it a crime to distribute “indecent”
material over computer online networks. The Court said
that protecting children from pornography did not
supersede the right to freedom of expression, adding that
the act was unenforceable with the current technology.
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Miller v. California (1973)
This case established the test for determining if a book,
movie, television program, etc. is obscene and thus
unprotected by the First Amendment. A work is obscene
if: 1) the average person would find that the work taken
as a whole appeals to prurient interests; 2) the work
defines or depicts sexual conduct in a “patently offensive
way” as determined by state law; and 3) the work taken
as a whole “lacks serious literary, artistic, political, or
scientific value.”
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DeJonge v. Oregon (1937)
This case reinforced earlier Supreme Court holdings that
the First Amendment’s protection of peaceable assembly
and association must be honored by the states. In this
case, Dirk DeJonge, a member of the Communist Party,
was convicted and sentenced to a seven-year prison
term for speaking at a public meeting of the party. In
reversing the conviction, the Court held that merely
speaking at a meeting of the Communist Party was
protected by the First Amendment and thus could not be
made a crime.
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Feiner v. New York (1951)
This case upheld the disorderly conduct conviction of
Irving Feiner. Feiner was arrested as he was giving a
speech on a street corner in a predominantly African
American section of a city. Among other things, Feiner
said that African Americans “don’t have equal rights and
they should rise up in arms and fight for them.” The
Supreme Court said that the First Amendment protected
free speech but not the right to use speech to incite a
riot, as it concluded Feiner had done.
Click the Section Start button to return to the lecture notes.
Gregory v. City of Chicago
(1969)
This case struck down the disorderly conduct convictions
of several protesters who marched from city hall to the
mayor’s home to press their demand that the city’s
schools be desegregated. The Court held that peaceful
protest is protected by the First Amendment.
Click the Section Start button to return to the lecture notes.
Engel v. Vitale (1962)
This case held that the establishment clause was
violated by a public school district’s practice of starting
each school day with a prayer which began: “Almighty
God, we acknowledge our dependence upon Thee.”
The Supreme Court explained that under the
establishment clause religion is a personal matter to be
guided by individual choice. The Court also noted that
the establishment clause was intended to protect
against religious persecution that often results when
government aligns itself with a particular religion.
(Continued)
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Engel v. Vitale (cont.)
In short, the Court concluded that the establishment
clause was intended to keep government out of religion,
thus making it unacceptable for government to compose
prayers for anyone to recite.
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