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Advanced Placement US Government
A. History of Free Speech
If you were to take a poll, and ask people what aspect of the American system of government they cherish above all
others, most Americans would probably emphasize our tradition of rights, liberties, and freedoms. Over time we have
commonly come to believe that the hallmark of a democratic system is respect for civil liberties, especially the freedom of
religion, speech, press, and assembly.
The framers of the U.S. Constitution had constraining the national government as one of their foremost aims. But
the framers did not include in the main body of the Constitution a specific list of fundamental rights that may not be
infringed upon. The concept that prevailed in the Constitutional Convention was that the institutional mechanisms of the
Constitution—federalism, separation of powers, elections—would be sufficient to constrain the national government. But
the popular protest over the absence of a list of fundamental human rights led to the agreement to add the Bill of Rights.
The connection between civil liberties, especially the fundamental First Amendment rights, and the existence of a
free society should be paramount, and yet there is often an ambiguous nature in the practical application of First
Amendment rights. The Bill of Rights itself technically applies only to the national government. It is the Fourteenth
Amendment, adopted after the Civil War, and especially the interpretation of the due process clause since the 1920s, that
has led to the nationalization of the Bill of Rights through "selective incorporation."
The words in the First Amendment may appear to be simple and straightforward, but there are no absolutes, and
the arguments over application have been endless. Most of the disputes have not been over the desirability of the basic
rights, but rather, on the application of those rights to specific cases. The U.S. Supreme Court has had to make some
agonizing choices between, for example, the right to a fair trial and the freedom of the press. In most cases, there is no
clear-cut right or wrong, but rather conflicting notions of what is good.
In addition to the rights specified in the Constitution, the Supreme Court has announced that the protections of the
Constitution extend to other fundamental rights, such as the right of association, the right to reproductive privacy, and the
right to travel.
The Warren Court protected such rights as the right to travel and reproductive privacy, which are not mentioned in
the Constitution. Even the more conservative Burger Court recognized new liberties such as the right to abortion and the
right of families to remain together.
New threats to liberties--as a result of new technologies or innovative government actions--necessitate the
possibility of recognizing new rights. Also, society's changing concept of freedom requires that the Supreme court be able
to adopt constitutional protections. But not everyone agrees that these rights, left out by the framers of the Constitution,
should have even been recognized.
1. Review the Court's words and analysis in these cases as it pertains to the creation of rights not otherwise found in the
Constitution, and also the words and analysis of the dissenting justices:
a.
freedom of travel—Shapiro v. Thompson, 394 U.S. 618 (1969)
b.
reproductive privacy—Griswold v. Connecticut, 381 U.S. 479 (1965)
c.
right to abortion—Roe v. Wade, 410 U.S. 113 (1973)
d.
right of families to remain together—Moore v. City of East Cleveland, 431 U.S. 494 (1977)
e.
Who has the better argument?
B. Why do we need free speech?
Two major theories have been accepted as to why the First Amendment protects speech. There is the theory,
expressed by Alexander Meiklejohn (1961 Supreme Court Review, 245) and many others that freedom of expression serves
essentially political ends. In this view, freedom of speech and the press is needed to maintain an effective democracy. This
view finds support in the philosophy of Locke, Burke and the pragmatists.
Others, such as Thomas Emerson (72, 1963, Yale Law Journal, 877), while agreeing that free expression is
instrumental to a successful democracy, argue that freedom of expression is also essential to individual fulfillment. This
view, that the inherent dignity of man is maintained in part through his ability to express himself, can be traced back to the
writings of Rousseau and Jefferson.
The view one holds of the purpose of the First Amendment affects that person's view of the scope of First
Amendment protections. Those who see the First Amendment as crucial to democratic decision-making limit the scope of
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Advanced Placement US Government
First Amendment protections to political expression. Those who see a self-fulfillment aspect to the First Amendment assign
First Amendment protections to a much wider scope of content.
What is commercial speech? While banning speech to prevent the dissemination of a message is abhorred under
the First Amendment, that is exactly what is allowed in the area of advertising, known in the First Amendment context as
"commercial speech." The courts generally allow governments to regulate or even ban advertising, especially advertising
for products such as tobacco and alcohol. The logic used in these cases has typically been that, using the Alexander
Meiklejohn test, advertising bears no relation to public decision making. But is that true? You can make both sides of the
argument to your students, and let them decide.
The argument for regulating commercial speech is that proposals for commercial transactions ("We have soda pop
on sale today for $3 a six-pack!”) is so far removed from political speech that any public interest is totally irrelevant to First
Amendment values. Advocates of this view say that speech that does no more than propose a commercial transaction
does not involve any expression essential to self-government.
Those on the other side deny this, and say that the free market economy and our democratic system are
inseparable. In a democracy, they say, if people are to make their own personal, economic, and intellectual decisions, there
must be a free exchange of commercial opinion and information. Pure commercial speech may not affect how people are
governed as directly as political speech does, but it indirectly affects peoples' attitudes and values about how they should
be governed. While politics can shape a man's business, business can just as easily shape a man's politics.
2. Explain each of the arguments. Which side has the better argument? Support your answer.
3. Read Brown v. Mississippi, 297 U.S. 278 (1936), which provides a stark example of the evil of coerced confessions.
Identify the violations of civil liberties in this case.
C. Essay Choices. You must choose 2 questions and write a one page – five paragraph essay on each. NO ONE in the class
may choose the same essays and you will be required to present a synopsis of your arguments to the class on the due date.
1. Of all the forms of governmental interference with expression, judges are most suspicious of those that impose
prior restraints on speech. What are prior restraints and why are they so disfavored?
2. What if a newspaper got a tip that in six hours American military planes were going to attack the secret
headquarters of a hated foreign dictator. Under the Constitution, does the newspaper have the right to publish
that information? If it has the right, should it publish it, if that might mean putting our military planes in jeopardy?
3. The U.S. Supreme Court has concluded that the government cannot forbid the burning of the American flag as a
form of political protest. Do you agree with this decision? Does America need a constitutional amendment
prohibiting flag burning?
4. Congress opens each day with a prayer, yet the Supreme Court refused to allow public school classes to open with a
prayer or even to display the Ten Commandments. What is the difference? Also, should a school prayer
constitutional amendment be passed—why or why not?
5. Should community groups be allowed to have books they deem objectionable on moral or sexual grounds banned
from public libraries?
6. In 1999, the Supreme Court ruled that freedom of speech does not protect lewd or obscene e-mail material. Is this
one step toward further censorship of the internet—why or why not?
7. Describe the three-part test created in Lemon v. Kurtzman to determine if a statute violates the Establishment
Clause, and identify and describe various tests advocated by various judges to interpret the establishment clause.
8. Explain how and when tax funds may be used to fund educational programs at church-related schools.
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9. Discuss the controversy over vouchers and state aid being used for religious schools.
10. Define the following historic constitutional tests on freedom of speech issue: bad tendency test, clear and present
danger test, and the preferred position doctrine.
11. Identify and compare protected speech and nonprotected speech.
12. Explain the libel guidelines established by the New York Times v. Sullivan case.
13. List the standards of obscenity as defined by the Miller decision.
14. Compare the changing social and judicial interpretations of obscenity and pornography.
15. Explain the significance of “sunshine laws,” the FOIA, and the electronic FOIA.
16. Explain the constitutional implications of “hate speech on campus.”
17. Is it fair that Arab-Americans be questioned/detained for no other reason than their ties to the Arab world? In the
wake of September 11, 2001, does national security take priority over individual rights and civil liberties?
18. Should there be a right of privacy even though it was not directly mentioned in the Constitution? What are the
limits on when the Supreme court can create new constitutional protections?
19. Does the Patriot Act threaten fundamental American freedoms?
20. Why is the Fourteenth Amendment so important in Civil Rights and Liberties?
21. What are the current standards for on-line privacy? How much should people worry about the loss of on-line
privacy?
22. Do we really have to protect the KKK and other despicable groups? Should freedom of assembly include the right of
groups like the American Nazi party, the Ku Klux Klan, the Communist Brigade, and similar groups to march and
hold rallies? Explain your answer and why others might argue otherwise.
23. As workers sift through the rubble that was the World Trade Center in New York City just weeks ago, many
Americans are asking themselves how many personal liberties they are willing to sacrifice to prevent more terrorist
attacks. The question is not a new one. Throughout American history, civil liberties have been shoved aside, or at
least altered, in favor of more security. During the Civil War, Abraham Lincoln suspended the basic right of habeas
corpus, or the right of someone being detained to come into court and challenge his detention. Discuss the
historical evolution of civil liberties citing examples and cases of fundamental changes which have evolved from
Court decisions.
24. Compare and contrast the two clauses in the First Amendment dealing with religion.
25. Compare and contrast the "clear and present danger test" and the "direct incitement test."
26. Choose two limitations on free speech and discuss them
27. Discuss recent Court rulings on hate speech.
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Advanced Placement US Government
28. What controversies exist over the Second Amendment?
29. What are your "due process rights," and why do we have them? Cite cases.
30. Define and discuss the right to privacy including access to contraception, abortion, drug testing, homosexual rights,
and other rights that might be covered, such as privacy of medical records, Social Security records, the selling of
your name, address, and financial information to direct mail outlets, etc. On what bases does the Court determine
privacy rights?
31. How has the Court dealt with obscenity cases and the very definition of obscenity? Should obscenity be protected
as freedom of expression, or should local communities be allowed to set standards of what is and is not obscene?
Explain.
32. Why have flag burning and wearing a black armband been protected by the Court? Do you think this is appropriate
or not? Explain.