Banned Books: Case Study
Board of Education, Island Trees Union Free School District v. Pico (1982)
The Facts
At a conference sponsored by Parents of New York United (PONYU) in September 1975,
three members of the Board of Education, Island Trees Union Free School District No.
26, in New York received lists of books that PONYU considered "objectionable." The
board members discovered that nine of the books listed were in their district's high school
library and one of the books was in the junior high school library. At a February 1976
meeting of the superintendent of schools and principals, the board gave an "unofficial
direction" to remove the ten books from the library shelves and deliver them to the
Board. After their action was publicized, the board appointed a "Book Review
Committee" composed of four parents and four school staff members. In July, the
committee recommended:


The Fixer, Laughing Boy, Black Boy, Go Ask Alice and Best Short Stories by
Negro Writers be returned to the library shelves. The Naked Ape and Down These
Mean Streets be removed from the library shelves.
Slaughterhouse Five be made available to students only with parental approval.
The committee could not agree what to do with Soul On Ice and A Hero Ain't Nothin' But
A Sandwich, and they took no position on A Reader for Writers. (Not all committee
members had read the book.) Board members - who themselves had read only excerpts
from the books - ordered principals in the school district to remove eight of the works in
question from district junior high and high school libraries. (Laughing Boy was the only
book the board agreed to return to library shelves; Black Boy could be obtained only with
parental approval.) The reasons for banning the books varied, but most commonly cited
were the presence of profanity and explicit discussions of sex, as well as the "antiAmerican, anti-Christian, anti-Semitic, and just plain filthy …" nature of the writings.
High school students Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger and
junior high student Paul Sochinski brought action against the school board in District
Court, alleging that the board's actions had denied them their rights to free expression
under the First Amendment. The District Court ruled in favor of the school board. On
appeal, the Court of Appeals reversed the decision. The school board then petitioned the
U.S. Supreme Court, which granted certiorari.
The question
Did the Board of Education's decision to ban certain books from its junior high and high
school libraries, based on their content, violate the First Amendment's freedom-of-speech
protections?
The assignment
After reviewing the facts and issues in this Supreme Court case, answer the question
posed by this case. Select the judicial opinion with which you agree. You must give a
thorough explanation for your viewpoint. When you read the opinions of the justices, you will find
double and single quotation marks. The information within single quotation marks is material cited by the
writer from previous court decisions (precedents).
Board of Education, Island Trees Union Free
School District v. Pico (1982)
Opinion A
Justice William J. Brennan, author "… Does the First Amendment impose limitations
upon [a local school board] to remove books from the Island Trees High School and
Junior High? … As the case is presented to us, it does not involve textbooks, or indeed
any books that Island Tree students would be required to read … the only books at issue
in this case are library books, books that by their nature are optional rather than required
reading … "… The Court has long recognized that local schools have broad discretion in
the management of school affairs … federal courts should not ordinarily 'intervene in the
resolution of conflicts which arise in the daily operation of school systems.' … We have
also acknowledged that public schools are vitally important 'in the preparation of
individuals for participation as citizens,' and as vehicles for 'inculcating fundamental
values necessary to the maintenance of a democratic system.' We are therefore in full
agreement … that local school boards must be permitted 'to establish and apply their
curriculum in such a way as to transmit community values.' …"… At the same time,
however, we have necessarily recognized that the discretion of the States and local school
boards in matters of education must be exercised in a manner that comports with the
transcendent imperatives of the First Amendment. … "… The First Amendment rights of
students may be directly and sharply implicated by the removal of books from the shelves
of a school library. Our precedents have focused 'not only on the role of the First
Amendment in fostering individual self-expression but also in its role in affording the
public access to discussion, debate, and the dissemination of information and ideas.' … In
keeping with this principle, we have held that in a variety of contexts 'the Constitution
protects the right to receive information and ideas.' "… In sum, just as access to ideas
makes it possible for citizens generally to exercise their rights of free speech and press in
a meaningful manner, such access prepares students for active and effective participation
in the pluralistic, often contentious society in which they will soon be adult members. Of
course, all First Amendment rights accorded to students must be construed 'in light of the
special characteristics of the school environment.' … But the special characteristics of the
school library make that environment appropriate for the recognition of the First
Amendment rights of students. "… A school library, no less than any other public library,
is 'a place dedicated to quiet, to knowledge, and to beauty.' … 'Students must always
remain free to inquire, to study and to evaluate, to gain new maturity, and understanding.'
The school library is the principal locus of such freedom. … 'A student can literally
explore the unknown, and discover areas of interest and thought not covered by the
prescribed curriculum. … Th[e] student learns that a library is a place to test or expand
upon ideas presented to him, in or out of the classroom.' …"… As noted earlier, nothing
in our decision today affects in any way the discretion of a local school board to choose
books to add to the libraries of their schools. Because we are concerned in this case with
the suppression of ideas, our holding today affects only the discretion to remove books.
In brief, we hold that local school boards may not remove books from school library
shelves simply because they dislike the ideas contained in those books and seek by their
removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion.'"Board of Education, Island Trees Union Free School District v. Pico
(1982)
Opinion B
Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr., William H.
Rehnquist and Sandra Day O'Connor, authors "… The First Amendment, as with other
parts of the Constitution, must deal with new problems in a changing world. In an attempt
to deal with a problem in an area traditionally left to the states, … the Court [is] going
beyond any prior holding under the First Amendment. … "… The states and local elected
school boards should have the responsibility for determining the educational policy of the
public schools. … School boards are uniquely local and democratic institutions. [They]
have only one responsibility: the education of the youth of our country. Apart from
health, no subject is closer to the hearts of parents than their children's education in those
years. For these reasons, the governance of elementary and secondary education
traditionally has been placed in the hands of a local board, responsible locally to the
parents and citizens of the school district. … It is fair to say that no single agency of
government at any level is closer to the people whom it serves than the typical school
board. "… The decision as to the educational worth of a book is a highly subjective one.
Judges rarely are as competent as school authorities to make this decision; nor are judges
responsive to the parents and people of the school district. "… Although I would leave
this educational decision to the duly constituted school board, I certainly would not
require a school board to promote ideas and values repugnant to a democratic society or
to teach such values to children. "In different contexts and in different times, the
destruction of written materials has been the symbol of despotism and intolerance. But
the removal of nine vulgar or racist books from a high school library by a concerned local
school board does not raise this specter. "… 'The importance of public school in the
preparation of individuals for participation as citizens, and in the preservation of the
values of which our society rests, had long been recognized by our decisions.' Public
schools fulfill the vital role of teaching students the basic skills necessary to function in
our society and of 'inculcating fundamental values necessary to the maintenance of a
democratic political system.' The idea that such students have a right of access, in the
school, to information other than that thought by their educators to be necessary is
contrary to the very nature of inculcative education. … "… Students are not denied books
by their removal from a school library. The books may be borrowed from a public
library, read at a university library, purchased at a bookstore, or loaned by a friend. …
Indeed, following the removal from the school library of the books at issue in this case,
the local public library put all nine on display for public inspection. Their contents were
fully accessible to any inquisitive students. …
"… In this case, the students' rights of free speech and expression were not infringed, and
no ideas were suppressed. … If the school can set curriculum, select teachers, and
determine what books to purchase for the school library, it surely can decide which books
to discontinue or remove from the school library so long as it does not also interfere with
the right of students to read the material and to discuss it. … I do not personally agree
with the board's actions with respect to some of the books in question here, but it is not
the function of the courts to make the decisions that have been properly relegated to the
elected members of the school boards. It is the school board that must determine
educational suitability, and it does so in this case."
Abstract
Oral
Argument:
Decision:
Issues:
Categories:
Advocates
Tuesday, March 2, 1982
Friday, June 25, 1982
First Amendment, Miscellaneous
education, first amendment, freedom
of speech, obscenity
Bernard
Hellring
Alan H.
Levine
George W.
Lipp, Jr.
(Argued the cause for
the petitioners)
(Argued the cause for
the respondents)
(on behalf of the
Petitioners)
Facts of the Case
The Island Trees Union Free School District's Board of Education (the "Board"), acting
contrary to the recommendations of a committee of parents and school staff, ordered that
certain books be removed from its district's junior high and high school libraries. In
support of its actions, the Board said such books were: "anti-American, anti-Christian,
anti-Semitic, and just plain filthy." Acting through his friend Francis Pico, and on behalf
of several other students, Steven Pico brought suit in federal district court challenging the
Board's decision to remove the books. The Board won; the U.S. Court of Appeals for the
Second Circuit reversed. The Board petitioned the U.S. Supreme Court, which granted
certiorari.
Question
Did the Board of Education's decision to ban certain books from its junior high and high
school libraries, based on their content, violate the First Amendment's freedom of speech
protections?
Conclusion
Yes. Although school boards have a vested interest in promoting respect for social,
moral, and political community values, their discretionary power is secondary to the
transcendent imperatives of the First Amendment. The Court, in a 5-to-4 decision, held
that as centers for voluntary inquiry and the dissemination of information and ideas,
school libraries enjoy a special affinity with the rights of free speech and press.
Therefore, the Board could not restrict the availability of books in its libraries simply
because its members disagreed with their idea content.
Engel v. Vitale, 370 U.S. 421 (1962)
Facts:
The parents of ten pupils in New York schools challenged the constitutionality of a New
York state law requiring public schools to begin each day with a state authorized prayer
drafted by the State Board of Regents. These parents argued that state-sponsored prayers
in public schools violate the Establishment Clause.
Issue:
Whether state legislation can require principals, teachers and students to begin the day
with prayers that are sponsored and written by the state.
Holding:
In a 6-1 decision (two justices did not participate), the Court held that school officials
may not require devotional religious exercises during the school day, as this practice
unconstitutionally entangles the state in religious activities and establishes religion.
Reasoning:
Appealing to history, the Court explained that the First Amendment protects religious
liberty by keeping government from determining when and how people should pray or
worship. Early Americans knew, "some of them from bitter personal experience, that one
of the greatest dangers to the freedom of the individual to worship in his own way lay in
the Government’s placing its official stamp of approval upon one particular kind of
prayer or one particular form of religious services." The Court found that the
Establishment Clause prohibits the government from involving itself in devotional
religious exercises. It further explained that such separation of church and state protects
both government from religious domination, and religion from government tyranny and
abuse.
Majority:
"[W]e think that the constitutional prohibition against laws respecting an establishment of
religion must at least mean that in this country it is no part of the business of government
to compose official prayers for any group of the American people to recite as a part of a
religious program carried on by government." (Justice Hugo Black)
Dissent:
"With all respect, I think the Court has misapplied a great constitutional principle. I
cannot see how an 'official religion' is established by letting those who want to say a
prayer say it. On the contrary, I think that to deny the wish of these school children to
join in reciting this prayer is to deny them the opportunity of sharing in the spiritual
heritage of our Nation." (Justice Potter Stewart)
Hazelwood Sch. Dist.. v. Kuhlmeier, 484 U.S. 260 (1988)
Facts:
Students produced a school newspaper as part of their journalism class. One issue was to
include student-written articles about teen pregnancy and the impact of divorce on kids.
The principal objected to the stories, believing they were inappropriate for the younger
students and unfair to the pregnant students who might be identified from the text of the
article. He also believed that the parents of the students quoted in the divorce article
should have been given an opportunity to respond. He deleted the articles from the school
newspaper. Three students sued, claiming a violation of their First Amendment rights
under the Tinker standard.
Issue:
Whether school officials can censor school-sponsored student publications when they
believe material is inappropriate for younger students, or for reasons other than the
prospect of material and substantial disruption of the educational process.
Holding:
By a 5-3 vote, the Court held that school officials can censor school-sponsored student
publications when they have purposes reasonably related to legitimate educational
concerns.
Reasoning:
There is a fundamental difference between private student speech and student speech that
occurs in school-sponsored activities. Educators have greater authority to control schoolsponsored student speech because the public might reasonably believe such speech bears
"the imprimatur of the school." Educators "do not offend the First Amendment by
exercising editorial control over the style and content of student speech in schoolsponsored expressive activities so long as their actions are reasonably related to
legitimate pedagogical concerns." A publication created as part of a class is clearly
school-sponsored and a part of the curriculum. The school never adopted a policy
whereby the publication simply became a public forum open to any and all views. The
school administration thus properly acted as editor of the newspaper.
Majority:
"A school must also retain the authority to refuse to sponsor student speech that might
reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or 'conduct
otherwise inconsistent with the shared values of a civilized social order,' or to associate
the school with any position other than neutrality on matters of political controversy."
(Justice Byron White)
Dissent:
The dissent argued that the majority erred in making a distinction between studentinitiated and school-sponsored speech. The Tinker standard of material and substantial
disruption should govern all student free-expression cases. "The case before us aptly
illustrates how readily school officials (and courts) can camouflage viewpoint
discrimination as the 'mere' protection of students from sensitive topics." (Justice William
Brennan)
Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S.
853 (1982)
Facts:
After several of its members attended a conservative educational conference, an upstate
New York school board determined that nine books in a high school library, including
Slaughter House Five by Kurt Vonnegut and Black Boy by Richard Wright, should be
removed because they were inappropriate for young people. Several students and parents
challenged the school board’s decision to remove these books from the library.
Issue:
Whether school officials can, consistent with the First Amendment, remove books from a
school library because they find the books inappropriate or objectionable.
Holding:
By a 5-4 vote, the Court held that school officials cannot remove books from a school
library simply because they find the ideas in the books objectionable.
Reasoning:
The First Amendment protects the right to receive information and ideas. A school library
is a special place, "the principal locus of such freedom." The First Amendment prohibits
the suppression of material simply because government officials, including school
officials, dislike the material. "Local school boards may not remove books from school
library shelves simply because they dislike the ideas contained in those books and seek
by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of public opinion'"
Majority:
"[T]he special characteristics of the school library make that environment especially
appropriate for the recognition of the First Amendment rights of students." (Justice
William Brennan)
Dissent:
The dissent argued that federal courts should not superimpose their judgments about what
books should be included in school libraries. "Were this to become the law this Court
would come perilously close to becoming a 'super censor' of school board library
decisions." (Chief Justice Warren Burger)
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)
Facts:
Several students planned to wear black armbands to school to protest U.S. involvement in
the Vietnam War and mourn the dead on all sides. School officials learned of the
impending protest and quickly adopted a no-armband rule (even though they allowed
students to wear other symbols). The students nonetheless wore the armbands to school.
School officials suspended them for violating school policy. The students sued, claiming
violation of their First Amendment rights.
Issue:
Whether school officials can censor non-violent student speech without showing that the
speech will cause a material and substantial disruption of school educational activities or
collide with the rights of others.
Holding:
By a 7-2 vote, the Court held that school officials cannot censor student speech unless
school officials reasonably forecast that the speech will cause a material and substantial
disruption of school activities or collide with the rights of others. Mere apprehension of
disturbance or an offense given is not enough.
Reasoning:
Students do not lose their constitutional rights at the schoolhouse door. School officials’
duties to provide a safe learning environment must be balanced against students’ freeexpression rights. School officials may not censor student speech because of an
"undifferentiated fear or apprehension." They must reasonably forecast that the student
speech will cause a substantial disruption or invade the rights of others. In this case, "the
record does not demonstrate any facts which reasonably may have led school authorities
to forecast substantial disruption of or material interference with school activities, and no
disturbances or disorders on the school premises in fact occurred."
Majority:
"It can hardly be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate." (Justice Abe Fortas)
Dissent:
This case will help usher in "a new revolutionary era of permissiveness in this country
fostered by the judiciary. . . I wish, therefore, wholly to disclaim any purpose on my part
to hold that the Federal Constitution compels the teachers, parents, and elected school
officials to surrender control of the American public school system to public school
students." (Justice Hugo Black)
Constitutional Rights Foundation
America Responds to Terrorism
A "Clear and Present Danger"
After the terrorist attacks in New York and Washington, Americans pulled
together. But Americans still speak out voicing many different opinions. The
First Amendment of the U.S. Constitution guarantees freedom of speech. And
most Americans support the idea of free speech. But since the First Amendment
became part of the Constitution in 1791, American citizens have sometimes
gotten into trouble with the government for speaking out. This has happened
when a speaker was considered "too unpatriotic," "too radical," or "too
dangerous."
Who should have freedom of speech? Should it apply only to those who voice
opinions most people agree with? Or, should it be for everyone, even for those
who hold opinions that most Americans hate?
Also, what does freedom of speech really mean? Does it mean that someone
should be able to say whatever he or she wants at any time or place? Or, should
speech sometimes be limited by the law?
Sedition Act of 1798
Just a few years after the First Amendment was added to the Constitution, the
federal government passed a law restricting freedom of speech. In 1798,
Congress passed the Sedition Act. War seemed likely between the United States
and its former ally France. Members of Congress were convinced that people
sympathetic to France would try to stir up trouble for the new nation.
Congress and President John Adams believed that the Sedition Act would help
control pro-French troublemakers by forbidding criticism of the federal
government. "Sedition" generally means the incitement of violent revolution
against the government. The Sedition Act of 1798, however, went far beyond
this. It required criminal penalties for persons who said or published anything
"false, scandalous, or malicious" against the federal government, Congress or
the president.
Twenty-five American citizens were arrested under the Sedition Act. Among
them was a Congressman who was convicted and imprisoned for calling
President Adams a man who had "a continual grasp for power." Another citizen
was convicted for painting a sign that read, "Downfall To The Tyrants of
America." Still another man was found guilty of sedition for saying that he
wished that the wadding of a cannon fired in a salute to President Adams would
hit him in the seat of the pants.
Despite the arrests and convictions, many people spoke out against the Sedition
Act. The state of Virginia even threatened to secede from the United States over
this issue. The act was never legally challenged before the Supreme Court.
Instead, it simply expired in 1801. By that time Thomas Jefferson, a bitter
political opponent of President Adams and the Sedition Act, had been elected
President. He pardoned all those convicted under this law.
"Clear and Present Danger"
Another major attempt to regulate freedom of speech occurred during World
War I. In 1917, Congress passed the Federal Espionage Act. This law prohibited
all false statements intending to interfere with the military forces of the country
or to promote the success of its enemies. In addition, penalties of up to $10,000
and/or 20 years in prison were established for anyone attempting to obstruct the
recruitment of men into the military. In 1918, another law was passed by
Congress forbidding any statements expressing disrespect for the U.S.
government, the Constitution, the flag, or army and navy uniforms.
Almost immediately, Charles Schenck, general secretary of the American
Socialist Party, violated these laws. He was arrested and convicted for sending
15,000 anti-draft circulars through the mail to men scheduled to enter the
military service. The circular called the draft law a violation of the 13th
Amendment's prohibition of slavery. It went on to urge draftees not to "submit
to intimidation," but to "petition for repeal" of the draft law.
The government accused Schenck of illegally interfering with military
recruitment under the espionage act. Schenck admitted that he had sent the
circulars, but argued that he had a right to do so under the First Amendment and
was merely exercising his freedom of speech.
The issue found its way to the U.S. Supreme Court in the case of Schenck v.
United States, 249 U.S. 47 (1919). It was the court's first important decision in
the area of free speech. Justice Oliver Wendell Holmes wrote the opinion of the
unanimous Court, which sided with the government. Justice Holmes held that
Mr. Schenck was not covered by the First Amendment since freedom of speech
was not an absolute right. There were times, Holmes wrote, when the
government could legally restrict speech.
According to Justice Holmes, that test is "whether the words...are used in such
circumstances as to create a clear and present danger." Holmes said that in
Charles Schenck's case the government was justified in arresting him because,
"When a nation is at war, many things that might be said in time of peace are
such a hindrance to its effort that their utterance will not be endured so long as
men fight and that no Court could regard them as protected by any constitutional
right."
In the Schenck case, the highest court in the nation ruled that freedom of speech
could be limited by the government. But Justice Holmes was careful to say that
the government could only do this when there was a "clear and present danger"
such as during wartime. While settling one legal issue, however, the Supreme
Court created others. For example, what does a "clear and present danger"
specifically mean, and when should it justify stopping people from speaking?
The Angry Crowd
Another important free-speech case took place after World War II. It was only a
few years after thousands of American soldiers had given their lives to defeat
Adolf Hitler and the German Nazis. Arthur Terminiello was speaking before an
audience in Chicago. His message was hate. He said that Hitler was right in
what he did. He claimed that Democrats, Jews, and communists were all trying
to destroy America.
An angry crowd gathered outside the hall where Terminiello was speaking.
Bricks and bottles soon rained through the windows as his oratory continued.
Arthur Terminiello was later arrested, tried, and convicted for disturbing the
peace with his provocative harangue. Like Charles Schenck 30 years earlier,
Terminiello appealed his case to the U.S. Supreme Court (Terminiello v.
Chicago, 337 U.S. 1). He claimed that he should not have been arrested since his
speech was protected by the First Amendment. The city of Chicago, however,
argued that the things Terminiello raved about in his speech so angered people
that a "clear and present danger" to the safety of the community had occurred.
In 1949 the Supreme Court reversed Terminiello's conviction. (Four of the nine
justices dissented.) In the majority opinion, Justice William O. Douglas wrote
that "it is only through debate and free exchange of ideas that government
remains responsive to the will of the people...." Justice Douglas stated that in a
democracy free speech must occur even if it causes disputes, unrest, or "stirs
people to anger."
Thus, according to Justice Douglas, "freedom of speech, though not absolute, is
protected against censorship or punishment unless shown likely to produce a
clear and present danger of serious substantive evil that rises far above public
inconvenience, annoyance or unrest."
For Discussion and Writing
1. Do you think the Sedition Act of 1798 was constitutional? Why or why
not?
2. Do you think the right to free speech should be absolute? Explain.
3. What circumstances, if any, in peacetime might justify the government in
placing limits on freedom of press or speech?
ACTIVITY
When is Speech a "Clear and Present Danger"?
In this activity, students decide four free-speech cases decided by the Supreme
Court following World War I.
1. Divide the class into four groups for cases A, B, C, and D. Each group
should then be further divided to represent the pro and con sides of one
of the free speech cases.
2. The members of each pro and con group should now prepare arguments
for their side. Pro groups should review the material on the Schenck case
presented in this article. Con groups should review the information given
on the Terminiello case.
3. Following a debate format, the pro and con sides of Case A should
present their arguments to the rest of the class. At the conclusion of the
debate, the class should vote to determine which side presented the best
arguments. This same procedure should be followed for Cases B, C, and
D.
4. Debrief the activity by discussing:
o
What were the most important differences in the circumstances of
these four cases?
o
How would you define "clear and present danger"? Do you think
this is a good standard for setting the limits of free speech? Why
or why not?
Free Speech Cases
CASE A: Debs v. United States, (1919)
Eugene V. Debs, a leader of the American Socialist Party, addressed an anti-war
rally in 1918. At this rally, Debs praised other Socialist leaders who had
previously been arrested for opposing the draft law. Debs told his audience
(which included draft-age men): "You have your lives to lose.... You need to
know that you are fit for something better than slavery and cannon fodder."
Debs was arrested, tried, and convicted for violating the 1918 Amendment to the
Espionage Act. This law prohibited any speech that interfered with the drafting
of men into the armed forces.
DEBATE RESOLUTION: Eugene V. Debs' speech at the anti-war rally was a
"clear and present danger" to the laws of the United States.
CASE B: Frohwerk v. United States, (1919)
Jacob Frohwerk was the publisher of a pro-German newspaper in Missouri.
Shortly after the United States entered World War I, Frohwerk printed a series
of 12 articles opposing this action. He was then arrested, tried, and convicted for
violating the Espionage Act of 1917.
DEBATE RESOLUTION: Jacob Frohwerk's 12 articles were a "clear and
present danger" to the laws of the United States.
CASE C: Gitlow v. New York, (1925)
Benjamin Gitlow was a leader of the American Communist Party. After World
War I, Gitlow published and distributed 16,000 copies of a Communist Party
document called the "Left Wing Manifesto." This document argued for a
communist revolution in the United States and urged labor strikes and "class
action...having as its objective the conquest of the power of the state." Gitlow
was arrested by New York authorities for violating that state's "criminal
anarchy" law. This law made it a felony to advocate overthrowing the
established government by force or violence.
DEBATE RESOLUTION: Benjamin Gitlow's "Left Wing Manifesto" was a
"clear and present danger" to the laws of the United States.
CASE D: Abrams v. United States, (1919)
An immigrant from Russia, Jacob Abrams was accused of printing and
distributing leaflets that insulted the United States and interfered with the
nation's war effort against Germany. The defendants were charged under
provisions of the Espionage Acts of 1917 and 1918. The leaflets had been
thrown out of a window on August 22, 1918 protesting the U.S. invasion into
Russia during World War I. The Russian Communist Revolution of 1917 had
ended Russia's participation in the war against Germany. The United States had
opposed Russia's withdrawal and sent troops into parts of Russia. One article in
the leaflet denounced President Wilson as a hypocrite and a coward for sending
American troops into Russia. The article went on to appeal to American workers
to unite and revolt against the government. Another article called for a general
strike in the United States "to create so great a disturbance...America shall be
compelled to keep their armies at home, and not be able to spare any for
Russia."
DEBATE RESOLUTION: Jacob Abrams' leaflets were a "clear and present
danger" to the laws of the United States.
from http://www.crf-usa.org/terror/clear_present.htm
Justices to Hear Landmark Free-Speech Case
Defiant Message Spurs Most Significant Student 1st Amendment Test in Decades
By Robert Barnes
Washington Post Staff Writer
Tuesday, March 13, 2007; A03
The most important student free-speech conflict to reach the Supreme Court since the
height of the Vietnam War hinges on a somewhat absurd, vaguely offensive, mostly
nonsensical message of protest.
Bong Hits 4 Jesus.
That is the slogan that a defiant high school student named Joseph Frederick fashioned
with a 14-foot piece of paper and a $3 roll of duct tape. His goal was partly to get on TV
as the Olympic torch passed through his town of Juneau, Alaska, and mostly to get under
the skin of his disciplinarian principal, Deborah Morse, with whom he had a running
feud.
It worked, at least the irritating-the-principal part. Morse crossed Glacier Avenue to
Frederick's position across from the school and confiscated the banner. She later
suspended him for 10 days. Frederick, a high school rebel who at the time was fond of
quoting Thoreau and Voltaire, said Morse tacked on the last five days when he
paraphrased Thomas Jefferson's admonition that "speech limited is speech lost."
In the five years since, a classic conflict between a second-semester senior impatient to
move on in the world and his frazzled principal trying to maintain order has become an
only-in-America battle spawning numerous lawsuits, conflicting court rulings and
changes that shook the lives of its participants.
Now, a wide range of interested parties has assembled for what they see as an epic
Supreme Court battle, which will be heard on Monday.
The American Civil Liberties Union has been on Frederick's side from the jump, joined
by a diverse liberal and conservative coalition of civil rights, constitutional law and
religious organizations. Kenneth W. Starr, the independent counsel during the
investigation of President Bill Clinton, has volunteered his time to the Juneau School
District, and school boards nationwide, plus the Bush administration, are supporting
Morse and the school district.
Morse v. Frederick asks the justices to weigh the court's famous 1969 ruling that students
do not "shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate" against more recent decisions acknowledging a school system's ability
to create rules that maintain order and protect students from messages deemed harmful.
In this case, the school board maintains that Frederick's slogan encouraged smoking
marijuana. But other school districts, especially in light of school shootings and other
violence, have restricted clothing and speech that they thought could cause disruption or
violence.
Both sides equate an adverse ruling with cataclysmic results.
The "extraordinarily broad claim" asserted by the government, said ACLU national legal
director Steven R. Shapiro, "would in effect overrule the entire architecture of student
speech law that the Supreme Court has so carefully constructed over the past 40 years."
Morse's brief, written by Starr and a team of pro bono lawyers at the firm of Kirkland and
Ellis, said ratification of Frederick's victory in the appellate court would make all the
more daunting "the vital task of teachers, administrators and volunteer school board
members in attending holistically to the needs of millions of students entrusted every
school day to their charge."
Frederick was one of them, five years ago, though he was not a particularly happy student
at Juneau-Douglas High School. One day, he refused a vice principal's order to leave a
student commons area where he was reading Albert Camus, and the police were called.
The next day, he remained in his seat while others stood for the Pledge of Allegiance and
was sent to the principal's office. He described it all in a mini-treatise -- "This is a story of
a high school senior who refused to bow down in submission before an authority . . . ." -he posted on the Internet.
He planned his ultimate protest for Jan. 24, 2002, the day the Olympic torch was
scheduled to pass through Juneau, part of a 50-state relay leading up to the Salt Lake City
Olympic Games. Frederick said he had seen the phrase "Bong Hits For Jesus" on a sticker
on a snowboard.
"To me, it's absurdly funny," Frederick, now 23, said in a recent conference call with
reporters organized by the ACLU. "The phrase was not important. I wasn't trying to say
anything about religion. I wasn't trying to say anything about drugs. I was just trying to
say something. I wanted to use my right to free speech, and I did it."
While that right was clearly established by the court four decades ago, subsequent
decisions have allowed some restrictions, including those on speech considered indecent
enough to disrupt a school's mission, and some content in school newspapers.
Frederick's case presents unusual facts for the justices to consider. For one thing, he was
18 at the time of the event, and he was careful not to display his protest message on
school grounds. At least one non-student was among the group holding the banner, and
his attorneys contend that even if his message was considered pro-marijuana, debates
about legalizing the drug are a legitimate topic of political discussion in Alaska, where
the state high court has ruled that adults have the legal right to possess small amounts of
the drug.
Even school officials acknowledged that Frederick's actions were not disruptive. Students
throwing snowballs and plastic soda bottles at one another got more attention.
But the school board says Frederick's protest happened during a school-sponsored event - the entire student body was released for the parade, and the cheerleaders and pep band
entertained. "It was a field trip," Starr says, even if it occurred just outside the school's
doors. And in his brief, he argued, "student free speech rights . . . appropriately yield
when it comes to promoting illegal substances."
A federal district judge relied on the court's more recent decisions to dismiss Frederick's
lawsuit against Morse and the school board that backed her decision. But the U.S. Court
of Appeals for the 9th Circuit said that the 1969 decision in Tinker v. Des Moines
Independent Community School District from which the "schoolhouse gate" language is
drawn was the most important and that government officials cannot punish speech with
which they disagree. That court held Morse personally liable for violating Frederick's
rights, a finding that has caused consternation among educators nationwide.
Morse is now an administrator with the Juneau School District, and Superintendent
Peggy Cowan said the district's pursuit of the case was necessary. "The district backed
her decision, and we were sued," she said of Morse. It sounds like a cliche, she said, "but
it's the principle of the case that's important."
Frederick, too, has learned much about the legal system. He sued the Juneau Police
Department for a series of alleged harassment that occurred after the banner incident and
received a settlement from the city. Coincidentally, his father, Frank Frederick, worked
for the company that insured the school district and sued after he claimed that he was
demoted and then fired for not pressuring his son to drop his lawsuit. A jury believed
him, and he received a settlement of nearly $200,000.
Joseph Frederick was arrested while attending college in Texas for distributing
marijuana. "I never professed to be perfect or a saint," he said in the conference call with
reporters.
Father and son are now in China, where Joseph Frederick teaches English to Chinese
students and studies Mandarin. He has not brought up his case with his students as a way
to discuss freedom of speech or the American justice system. "I'm an English teacher -- I
don't teach constitutional law," he said.
Democracy is very difficult without freedom of speech. Unless there is a free exchange of
opinions and ideas, the people do not have the information they need for effective selfgovernment. Some legal scholars believe that the First Amendment only protects the
political speech necessary to democratic government. Others argue that the right of selfexpression—through art, literature, advertising, and even bad taste—makes a society
truly free. Another free speech issue is whether the First Amendment safeguards spoken
words alone, or also includes symbolic speech such as flag burning. Freedom of speech is
not unlimited, and the Supreme Court has restricted expression such as obscenity and
defamation.
“The most stringent
protection of free
speech would not
protect a man in falsely
shouting fire in a
theater and causing a
panic.”
——Justice
Oliver Wendell
Holmes
Free Speech in American History.The first written protection
of free speech in America was the Massachusetts Body of
Liberties in 1641. This document was a great step forward from
the English charters of liberty because neither the Magna Carta
in 1215, nor later the English Bill of Rights in 1689, included
freedom of speech or the press. After the American Revolution,
the newly independent states formed constitutions, several of
which mentioned freedom of speech. However, only three states
added freedom of speech to their list of proposed amendments
when ratifying the U.S. Constitution.
Only seven years after the First Amendment was approved in 1791, the nation erupted in
a controversy over the extent of free speech. Under English law, the mere act of
criticizing the government was a form of treason known as sedition. During a period of
intense political rivalry, President John Adams and his Federalist allies in Congress
enacted the Sedition Act of 1798, which essentially outlawed criticism of the U.S.
government. The law was enforced primarily against Adams’s political opponents,
Thomas Jefferson and his Democratic-Republican Party. The first person convicted under
the act was Rep. Matthew Lyon of Vermont, who won reelection to Congress from his
jail cell. Lyon had accused Adams of “an unbounded thirst for ridiculous pomp, foolish
adulation, and selfish avarice.” Another man was fined for making a derogatory comment
about Adams’s rear end.
Although truth was technically a defense against sedition in American law, colorful
metaphors were difficult to prove factually before the Federalist-dominated judiciary.
Consequently, the Democratic-Republicans never challenged the Sedition Act before the
Supreme Court. Instead, Jefferson and James Madison wrote the Virginia and Kentucky
Resolutions, which asserted that states had the power to declare laws like the Sedition
Act unconstitutional. With the help of the unpopular Sedition Act, Jefferson and his party
won both the presidency and Congress in the election of 1800. The Sedition Act expired
in 1801, and not until 1917 was another national sedition law passed.
However, state and local governments limited free speech in several ways between 1800
and 1917. During this time, the First Amendment did not apply to the states. Southern
states censored the mail throughout the antebellum period to keep out abolitionist
materials. Proslavery legislators also prevented Congress from hearing petitions opposing
slavery. After the Civil War, the labor movement led the battle for free speech. Using
permit systems, local governments closed streets and public parks to labor activists.
Labor unions also claimed that picket lines for striking workers were protected speech,
but businesses regarded them as coercive action. Courts often issued injunctions to
prevent strikes.
During World War I, Congress passed another sedition law to restrict criticism of the
war. The Espionage Act of 1917 prohibited any interference with the draft, as well as
“any disloyal, profane, scurrilous, or abusive language about the form of government of
the United States.” The federal government convicted more than two thousand people of
violating the Espionage Act. Many of them appealed their convictions to the Supreme
Court, and for the first time in its history the Court ruled on free speech issues. In
Schenck v. United States(1919), the Supreme Court held that the Espionage Act did not
violate the First Amendment. With that case, the Court began a long process of answering
two questions: what is free speech, and what are its limitations?
What Is Free Speech?The Supreme Court has repeatedly ruled that freedom of speech
consists not only of spoken words but also other types of expression. The Court
categorizes free speech activities as either pure speech,such as debates and public
meetings that involve spoken words alone, or speech-plus,such as demonstrations and
picketing that combine speech with action. Pure speech receives the highest form of First
Amendment protection; government may regulate the action components of speech-plus.
In Thornhill v. Alabama(1940), the Supreme Court ruled that nonviolent picketing is
included in freedom of speech.
Symbolic Speech. Another type of speech is symbolic speech.Also known as “expressive
conduct,” symbolic speech consists of actions that are themselves a message, without
spoken words. Some examples of symbolic speech are burning a draft card and burning
an American flag. The Supreme Court has treated these two examples very differently.
In United States v. O’Brien(1968), the Court ruled that burning a draft card was not
protected by the First Amendment, even though intended as a form of protest against the
Vietnam War. The Court held that the government had a valid purpose in punishing the
destruction of draft cards, which were necessary to raise and support an army. The goal
of the government’s action was to maintain the draft, not prevent dissent, said the Court.
But in Texas v. Johnson(1989), the Supreme Court ruled that burning the U.S. flag was
protected by the First Amendment. The Court struck down a Texas law that prohibited
the desecration of the American flag in a way “the actor knows will seriously offend”
other people. Gregory Lee “Joey” Johnson had burned a flag outside the 1984 Republican
National Convention in Dallas as part of a political demonstration. The Court held that
“government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.”
To counteract the Court’s decision, Congress passed the Flag Protection Act of 1989.
That law prohibited flag desecration regardless of whether bystanders were offended.
Nonetheless, in United States v. Eichman(1990), the Court held that the law violated the
First Amendment because it punished any person “who knowingly mutilates, defaces,
physically defiles,... or tramples upon any flag.” Such terms, the Court said, outlawed
disrespect for the flag, not the physical destruction of it. The Court noted that burning is
the proper way to dispose of a tattered flag. Thus, argued the Court, the Flag Protection
Act was punishing a person for the reason he burned the flag, which violated freedom of
speech. Congress has repeatedly attempted to pass a constitutional amendment to outlaw
flag desecration since the Eichmandecision in 1990. As of 2002, all fifty states had
passed resolutions saying they would ratify such an amendment if Congress passed it.
Public Forums.One of the concepts most fundamental to freedom of speech is the public
forum,a venue such as a street or public park that is normally open to free speech
activities. In such places, the government cannot ban the right to freedom of expression,
although it can regulate the “time, place, and manner” of such speech. These regulations
must be “content neutral” and cannot discriminate based on the nature of the message
being expressed. For example, the government can prohibit amplified speech in public
parks after dark, but it cannot make the rule apply only to antiabortion activists.
The Right Not to Speak.The government cannot compel a person to speak. The
Supreme Court upheld this principle in West Virginia State Board of Education v.
Barnette(1943), ruling that Jehovah’s Witness children could not be expelled from school
for refusing to salute the flag. In another case involving a Jehovah’s Witness, Wooley v.
Maynard(1977), the Court held that citizens do not have to become “mobile billboards”
for the state. Maynard was arrested for repeatedly covering up the words “Live Free or
Die” on his automobile’s license plate. Maynard argued that the New Hampshire motto
violated his religious beliefs about salvation.
Campaign Finance Laws.The Supreme Court ruled in Buckley v. Valeo(1976) that in
political campaigns “money is speech” protected by the First Amendment. In that case,
the Court struck down campaign finance laws that restricted how much an individual
could spend on behalf of a candidate through independent expenditures. However, the
Court upheld limits on direct contributions to the candidate’s campaign, ruling that large
donations could give the appearance of corruption.
Some critics of the Court’s decision argue that campaign expenditures are property, not
speech, and can be regulated by the government. Others believe that the First
Amendment fully protects both contributions and expenditures—and a candidate should
be punished only for actual corruption, not implied corruption. During the 1999–2000
election cycle, congressional candidates spent more than one billion dollars, according to
the Federal Election Commission—the largest amount in its twenty-five-year history.
Advocates of campaign finance reform want to curtail the unlimited “soft money” that
can now be donated to political parties, which they say evades the purpose of the
restrictions on “hard money” contributions directly to political candidates. Opponents of
campaign finance laws argue that the very purpose of the First Amendment is to protect
political speech as fully as possible. And, they add, limits on individual contributions
merely give incumbents and wealthy candidates an unfair advantage in elections.
What Are the Limits of Free Speech?Certain categories of speech are not protected at
all by the First Amendment. These include obscenity, defamation, fighting words, and
speech that incites illegal action. Other categories of speech—such as speech in
schools—are covered by the First Amendment, but in a limited manner.
Obscenity. The Supreme Court has had difficulty developing a legal definition for
obscenity, which in general is speech or action that portrays sex or nudity in a manner
contrary to societal standards of decency. In Miller v. California(1973), the Court held
that speech or conduct was obscene if it met all three of the following guidelines:
1."whether the average person, applying contemporary community standards, would find
that the work, taken as a whole, appeals to the prurient [obsessively sexual] interest;”
2.“whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law;” and
3.“whether the work, taken as a whole, lacks serious artistic, political, or scientific
value.”
The standards for obscenity are the only criteria regarding the First Amendment that vary
from community to community, rather than a uniform national standard. For instance,
under the First Amendment, flag burning must be allowed in every state. However, Chief
Justice Warren Burger wrote in his majority opinion in Miller: “It is neither realistic nor
constitutionally sound to read the First Amendment as requiring that the people of Maine
or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New
York City.”
Speech can be “indecent” without being legally obscene. The Supreme Court has struck
down several laws that attempt to regulate indecent but not obscene speech. In Reno v.
American Civil Liberties Union(1997), the Court held that the federal Communications
Decency Act violated the First Amendment. Congress had passed the law in 1996 in
order to keep children from accessing indecent material via the Internet. But the Court
ruled that the law was vague and overbroad, thereby unconstitutionally limiting adults’
free speech. And in Ashcroft v. Free Speech Coalition(2002), the Supreme Court also
struck down the Child Pornography Prevention Act of 1996, which made it illegal to
produce or possess “virtual” child pornography that is created by computer images but
does not involve actual children.
Defamation.The First Amendment does not protect defamation, or hurting another
person’s reputation by spreading falsehoods. Defamation using spoken words is
slander;defamation using written words is libel.A person cannot prove defamation if the
statements at issue are true. Lawsuits alleging defamation can exercise a chilling effect on
free speech. Therefore, in cases involving public officials and public figures, the Supreme
Court has erected very high thresholds for defamation. Such cases are usually brought
against the print or broadcast media, so they are discussed in greater depth under freedom
of the press.
Fighting Words.Another type of speech that is not protected by the First Amendment is
known as fighting words,abusive and insulting comments delivered face-to-face to a
specific individual. In Chaplinsky v. New Hampshire(1942), the Supreme Court upheld
the conviction of Chaplinsky, a Jehovah’s Witness, for calling a police officer “a damn
Fascist and a racketeer.” Such “fighting words,” the Court said, “have a direct tendency
to cause acts of violence.”
Hate speech. Some legal scholars maintain that racial and ethnic slurs are a type of
“fighting words” that should be included among limitations on free speech, just like
slander and libel. Certain colleges and cities have enacted “hate speech” codes that
prohibit derogatory remarks on the basis of religion, gender, sexual orientation, or race.
Critics of the codes charge that enforcing “politically correct” speech does not end
bigotry. They argue that such codes punish any speech that hurts someone’s feelings.
In R.A.V. v. St. Paul(1992), the Supreme Court struck down a city ordinance in St. Paul,
Minnesota, that prohibited the use of certain symbols “that arouse anger, alarm, or
resentment in others on the basis of race, color, creed, religion, or gender.” The statute
applied to both public and private property. A white juvenile, R.A.V., was convicted
under the statute for burning a cross in the yard of a black family. The Supreme Court
overturned the conviction because the St. Paul law punished speech based on its content,
but the Court noted that R.A.V. could be prosecuted for arson instead. However, in
Wisconsin v. Mitchell(1993), the Supreme Court upheld a law that increased the penalties
for “hate crimes” committed due to such factors as the victim’s race, religion, or sexual
orientation. An assault was not expressive conduct under the First Amendment, said the
Court, and different motives often lead to increased punishment in the criminal law.
Speech That Incites Illegal Action. Through a long line of cases, the Supreme Court has
developed a standard for when speech that advocates unlawful action is not protected by
the First Amendment. Originally, in Schenck v. United States (1919), the Court ruled that
speech that creates a “clear and present danger” of illegal acts was not covered by the
First Amendment. In that case, the Court upheld the conviction of Schenck under the
Espionage Act for distributing pamphlets that encouraged young men to resist the draft
during World War I.
In the 1950s, the Court ruled on several laws designed to prohibit membership in the
Communist Party. Congress passed the Smith Act in 1940, which outlawed advocating
the violent overthrow of the U.S. government. The Supreme Court upheld the Smith Act
under the First Amendment in Dennis v. United States(1951), but in Yates v. United
States(1957) the Court ruled that the law did not prohibit advocacy of violent revolution
as an abstract idea, rather than as a specific action.
Finally, in Brandenburg v. Ohio(1969), the Court articulated its current standard for
punishing speech that incites illegal action. Such action must be “imminent,” said the
Court, and probable. Thus, the Supreme Court ruled that a Ku Klux Klan leader’s cry at a
rally for members to violently oppose civil rights laws was protected speech. However, a
specific call to bomb churches at a designated place and time would not be.
Speech in Schools. Students do not have the same free speech rights as adults. However,
the Supreme Court ruled in Tinker v. Des Moines School District (1969) that neither
students nor teachers “shed their constitutional rights to freedom of speech or expression
at the schoolhouse gate.” In that case, thirteen-year-old Mary Beth Tinker and her older
brother John wore black armbands to school as a protest of the Vietnam War. They were
both suspended, but the Supreme Court ruled that their actions were symbolic speech
protected by the First Amendment. However, the Court excluded any student speech that
would “materially and substantially disrupt” the classroom.
Similarly, in Bethel School District v. Fraser(1986), the Supreme Court ruled that school
officials could discipline a student for making a sexually suggestive speech, even though
it was not technically obscene. And in Hazelwood School District v. Kuhlmeier (1988),
the Court distinguished between “school-sponsored expressive activities” and speech by
individual students. The Court held that in activities such as student newspapers and class
plays, school officials could exercise a legitimate editorial function that was consistent
with their educational mission.
Originally, freedom of the press referred to the printed word alone, such as books and
newspapers. But today broadcast media are also included, although they receive less
protection under the First Amendment than printed matter. Yet despite the changing
nature of the media, freedom of the press has involved a constant struggle between the
government and the people over access to information.
American Roots of a Free Press. Governments have always exercised censorship, the
official control of free expression. But with the invention of movable type by Johann
Gutenberg in the fifteenth century came a rapid increase in printed materials. Now, kings
and churches devised lists of banned books and pamphlets. In England, Henry VIII
required that books be licensed before they could be published, and his daughter
Elizabeth I ordered that all written works must be submitted to official censors for prior
approval. The press was also licensed in England’s colonies in North America. One of the
most contentious doctrines was seditious libel, under which a printer could be punished
for publishing criticism of the government. Such criticism, said the crown, led to
revolution and social unrest. Truth was no defense, because accurate criticism would
provoke the greatest upheaval.
But in 1735, the trial of John Peter Zenger for seditious libel planted the first roots of a
free press in America. Zenger was a German immigrant whose English was limited. The
printer of the New York Weekly Journal, Zenger served as the front for several wealthy
lawyers who wrote anonymous articles criticizing the royal governor. When Zenger was
jailed for seditious libel, his wife, Anna, kept the newspaper going. Although threatened
with a death sentence, Zenger refused to reveal the names of his writers. Zenger’s
attorney argued that truth should be a defense for seditious libel, and an American jury
refused to convict Zenger.
Zenger’s acquittal brought an end to most prosecutions for seditious libel in America.
However, licensing continued under the colonial legislatures. After the Revolutionary
War, Virginia was the first state to include freedom of the press in its constitution. During
the ratification debates on the Constitution, more states recommended including freedom
of the press than free speech in a proposed Bill of Rights. Indeed, Thomas Jefferson
wrote: “Were it left to me to decide whether we should have a government without
newspapers, or newspapers without a government, I should not hesitate a moment to
prefer the latter.”
Prior Restraint. The bedrock principle of a free press is that, absent great exigencies, the
government may not censor a work before it is published—a practice known as prior
restraint. However, the government can punish authors or editors after publication. In
Near v. Minnesota (1931), the Supreme Court incorporated freedom of the press to apply
to the states, holding that a Minnesota law authorizing prior restraints violated the First
Amendment. The Court held that merely because “miscreant purveyors of scandal” could
abuse freedom of the press did not lessen the prohibitions on prior restraint. The Court
did say that prior restraint might be justified in cases of national security, such as
preventing the publication of troop movements during wartime.
That standard was at issue in New York Times v. United States (1971), which involved the
publication of the Pentagon Papers, a secret analysis of the causes of the Vietnam War. A
former Pentagon employee, Daniel Ellsberg, illegally leaked the documents to the New
York Times and the Washington Post, which both published excerpts. A federal court
issued an injunction prohibiting further publication, the first time in American history
that the U.S. government had obtained a prior restraint. But the Supreme Court ruled that
the government had not proven that the Pentagon Papers would endanger national
security.
The burden against prior restraint is so great that the Supreme Court has held that it is not
overcome even by a defendant’s right to a fair trial. In Nebraska Press Association v.
Stuart (1976), the Court struck down a judge’s gag order barring the media from covering
certain details of a murder trial. Instead, the Court held that judges must take other steps
to guarantee a fair trial despite pretrial publicity, such as sequestering the jury or
changing the venue of the trial.
Libel. Another way that freedom of the press can be limited is through laws that make
libel easy to prove. Fearing lawsuits, the press censors itself. In New York Times v.
Sullivan (1964), the Supreme Court set a new standard that made libel very difficult to
prove for public officials. Civil rights leaders had purchased an advertisement in the New
York Times charging that the police in Montgomery, Alabama, abused African
Americans. Police commissioner L. B. Sullivan sued the Times for libel because several
details in the ad were incorrect, and he won the largest libel judgment ever awarded in
Alabama.
The Supreme Court unanimously overturned the Alabama jury’s verdict. The Court said
that in order to protect robust public debate, criticism of public officials deserved a wide
berth. Therefore, mere errors of fact, or even carelessness in publishing the errors, was
not enough to justify a libel suit by a public official. Instead, said the Court, the official
must prove that a newspaper printed the error with actual malice, meaning “with
knowledge that it was false or with reckless disregard of whether it was false or not.” The
Supreme Court later applied this standard for libel to public figures as well as public
officials.
In his book about the Sullivan case, New York Times columnist Anthony Lewis noted that
by 1964 public officials in the South had filed libel lawsuits of almost $300 million
against the media. “The aim was to discourage not false but true accounts of life under a
system of white supremacy,” wrote Lewis. He added: “Commissioner Sullivan’s real
target was the role of the American press as an agent of democratic change.”
Nonprint Media. Although freedom of the press is not limited to the printed word, other
forms of media do not receive as much protection under the First Amendment. The
Supreme Court has ruled that broadcast media, which use the public airwaves, can be
regulated by the federal government in ways that newspapers cannot be. But improved
technology and expanded channels decreased the government’s regulatory role. Cable
television, which uses private wires instead of public airwaves, is a hybrid under the first
Amendment; it receives more protection than broadcast media but less than print media.
In 1997, the Supreme Court upheld a “must-carry” law requiring cable companies to
reserve certain channels for network broadcast stations at no cost.
This portion of the First Amendment protects freedom of religion. It consists of two
parts: the Establishment Clause and the Free Exercise Clause. The Establishment Clause
prohibits the government from creating an official or established church, preferring one
religion over another, or benefiting believers instead of nonbelievers. The Free Exercise
Clause prohibits the government from interfering with the expression of religious beliefs.
Sometimes these two clauses conflict, and it is difficult for the government to avoid an
establishment of religion while at the same time protecting its free exercise.
Religious Liberty in Early America. In colonial America, established churches were the
norm. Although many colonists had come to America to escape persecution from the
established Church of England, they did not hesitate to create their own governmentbacked churches in the New World. The Puritan or Congregational Church became the
official religion in the New England colonies, and the Church of England or Anglican
Church was established in the southern colonies. The government compelled citizens of
all faiths to support the established church through taxes. In addition, the established
church punished sins as crimes. Colonists were forced to go to church on Sundays and
could be whipped for failing to know religious doctrines.
In New England, Quakers—or the Society of Friends—were executed for their faith, and
in southern colonies Baptists were required to be licensed in order to preach. Four
colonies—Delaware, New Jersey, Pennsylvania, and Rhode Island—did not create
established churches. Other colonies, such as Maryland, practiced “toleration” for
differing beliefs, but they did not protect the full civil rights of all faiths. As George
Washington wrote to a Jewish synagogue in 1790, toleration implied the unacceptable
premise that “it was by the indulgence of one class of people that another enjoyed the
exercise of their natural rights.”
After the Revolutionary War, more Americans clamored for freedom of religion. In 1786,
Virginia passed a law to protect religious liberty—the most extensive at that time.
Drafted by Thomas Jefferson, the Virginia Statute for Religious Freedom proclaimed that
“all men shall be free to profess...their opinions in matters of religion, and that the same
shall in nowise diminish, enlarge, or affect their civil capacities.” No longer could
Virginians be denied the right to vote or hold public office because of their religious
beliefs.
This same principle would be included in the U.S. Constitution in 1787. Article VI
forbade religious tests for federal offices, one of the few protections of individual
liberties specified in the original Constitution. Nonetheless, several states believed that
additional protections for religious liberty were needed, and they advocated such
amendments during their ratification of the Constitution. James Madison drew on these
proposals when he introduced his draft of the Bill of Rights after the First Congress
convened in 1789.
The Establishment Clause. The first part of the First Amendment’s protection of
freedom of religion is known as the Establishment Clause. It declares that Congress shall
make no law “respecting an establishment of religion.” Americans continue to disagree
about what constitutes an establishment of religion. Accommodationists believe that the
government must make allowances for the significant role that religion plays in American
life. Separationists argue that the Constitution prohibits any mingling of church and state.
Baptists played a critical role in the early development of the separation of church and
state in America. After Thomas Jefferson was elected president, the Danbury Baptist
Association in Connecticut wrote him a letter protesting the fact that in their state
“religion is considered as the first object of legislation.” Jefferson replied in 1802 that the
First Amendment prohibited the U.S. Congress from taking such action, “thus building a
wall of separation between church and state.”
The Supreme Court quoted Jefferson’s metaphor in Everson v. Board of
Education(1947). In that case, the Court for the first time incorporated the Establishment
Clause to apply to the states—opening the door to a plethora of church-state cases. The
Court outlined the prohibitions of the Establishment Clause as follows:
Neither a state nor the federal government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over another. Neither can
force...a person to go to or to remain away from church against his will, or force him to
profess a belief or disbelief in any religion.
Although the Supreme Court in Eversoncited Jefferson’s phrase of “a wall of separation
between church and state,” those words do not actually appear in the First Amendment.
However, neither does the Constitution refer to the terms “God,” “Creator,” or “Divine
Providence,” unlike the Declaration of Independence. In addition to Everson, the
Supreme Court has used a variety of legal tests regarding Establishment Clause issues.
Chief Justice William Rehnquist has long objected to the “wall of separation” doctrine,
and the Rehnquist Court has generally taken a more accommodationist view of churchstate issues.
Religion and Education.By far most Establishment Clause cases are about religion in
the schools. Before taxes supported general public education, schools were largely run by
churches. Many Americans became accustomed to sectarian values being part of the local
curriculum—often to the disadvantage of religious minorities. But because public schools
today are agents of the state, religious activity in them raises Establishment Clauses
issues. So does public aid to private religious schools.
Vouchers. One form of government aid to religious schools is through vouchers, which
allow parents to pay tuition at private schools using public funds. Supporters of vouchers
charge that the public schools are failing low-income, minority students, and that
vouchers are one way to improve student performance by increasing competition for tax
dollars spent on education. Voucher advocates maintain that just as students may use
government funds to attend religious colleges, parents should also have the choice of
using tax dollars for tuition at private schools. Critics of vouchers believe that
government funding of parochial schools violates the Establishment Clause, because such
programs would directly fund religious instruction—a more crucial component of
primary and secondary education at parochial schools than at religious colleges.
Furthermore, critics charge, such programs would eviscerate the public schools, which
must serve all students regardless of income or learning disabilities
In Zelman v. Simmons-Harris (2002), the Supreme Court ruled that a voucher system
established in Cleveland, Ohio for poor children in failing schools did not violate the
Establishment Clause. The Court held that a voucher program is constitutional if it is
“neutral with respect to religion and provides assistance directly to a broad class of
citizens,” who then select religious schools out of a “genuine and independent private
choice.” The dissenting justices argued that using tax dollars to pay for religious
indoctrination could never be “neutral” regarding religion.
Evolution. State laws governing how evolution is taught in the public schools also raises
Establishment Clause questions. Some Americans believe the scientific theory of
evolution conflicts with the biblical version of creation. In 1925, legendary lawyer
Clarence Darrow unsuccessfully defended John Scopes against a charge of violating
Tennessee law by teaching evolution. The state supreme court overturned Scopes’s
conviction, and the U.S. Supreme Court never ruled in his case. For the first time, the
Supreme Court struck down a state law banning the teaching of evolution in Epperson v.
Arkansas(1968). The Court also ruled in Edwards v. Aguillard(1987) that a Louisiana law
mandating the teaching of biblical “creation science” along with the theory of evolution
violated the Establishment Clause.
Equal Access. In 1984, Congress passed the Equal Access Act. It required that public
high schools receiving government funds allow student groups to meet, regardless of
their religious or political content—if the school allowed noncurricular clubs in general.
The Supreme Court held that this law did not violate the Establishment Clause in
Westside Community Schools v. Mergens(1990). Wrote Justice Sandra Day O’Connor:
“There is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect.”
The Supreme Court extended this rationale regarding freedom of speech for religious
groups in Lamb’s Chapel v. Center Moriches Union Free School District (1993). In that
case, the Court upheld the right of adult religious groups to use school facilities after
hours, if other nonschool groups are allowed to meet. And in Good News Club v. Milford
Central School(2001), the Court ruled that after-school religious groups involving young
students must be allowed to meet on the same basis as nonreligious groups.
School Prayer. Perhaps the most controversial issue involving the Establishment Clause
is prayer in the public schools. The Supreme Court ruled in Engel v. Vitale(1962) that
official prayer in public schools violated the Establishment Clause, even if students were
not forced to participate in such prayers. In that case, the New York State Board of
Regents had composed a prayer to begin each school day: “Almighty God, we
acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents,
our teachers, and our Country.” But the Court held that “in this country it is no part of the
business of government to compose official prayers for any group of the American
people to recite as a part of a religious program carried on by government.”
The next year, in Abington School District v. Schempp(1963), the Supreme Court also
overturned a Pennsylvania law mandating that each school day open with the Lord’s
prayer and Bible readings. However, in Wallace v. Jaffree(1985), the Court indicated that
an official “moment of silence” could pass constitutional muster if instituted with a
secular purpose. Nonetheless, the Court struck down the Alabama law at issue in that
case because its legislative history demonstrated that the state “intended to characterize
prayer as a favored practice.”
The Supreme Court also ruled in Lee v. Weisman(1992) that official prayers at graduation
ceremonies in public schools were unconstitutional. Moreover, in Santa Fe Independent
School District v. Doe(2000), the Court held that a high school’s policy allowing students
to vote on speakers before football games, and encouraging invocations, was public
rather than private speech. In such cases, said the Court, the religious nature of the speech
violated the Establishment Clause.
The Supreme Court has never outlawed voluntary prayer by individual students. But the
Court has prohibited the public schools from sponsoring religious activity. The Court has
even held that the study of religion or the Bible can be included in public school
instruction, as long as it is carried out in a secular manner. Nonetheless, many Americans
support a constitutional amendment that would allow official prayer in the public schools.
Religion in the Public Square. Besides education, the Establishment Clause also affects
the role of religion in public life. In general, the Supreme Court has been more willing to
allow religious expression in public settings when the impressionable nature of
schoolchildren is not involved. Thus, the Court ruled in Marsh v. Chambers(1983) that
prayers to open daily legislative sessions, even with government-funded chaplains, are
constitutional. Noting the historical roots of such opening prayers, the Court argued that
adult legislators were not subject to peer pressure or religious indoctrination.
State-sponsored holiday displays also raise Establishment Clause issues. During the
winter, many local governments erect decorations celebrating Christmas, a Christian
holiday, and Hanukkah, a Jewish holiday. The Supreme Court upheld such displays in
Lynch v. Donnelly (1984), as long as they included secular symbols of the season as well
as religious ones. This “two reindeer rule,” as critics described it, led many municipalities
to add Santa Claus and his sleigh to their holiday decorations. However, private groups
have the right to place religious displays on public property, on a nondiscriminatory basis
with other groups. In Capitol Square Review v. Pinette(1995), the Supreme Court
allowed the Ku Klux Klan to display a cross on a public square near the state capitol of
Ohio.
When Government Aids Religion. Another issue is at what point government
regulations that benefit religion violate the Establishment Clause. Regarding tax
exemption of religious property and contributions, the Supreme Court ruled in Walz v.
Tax Commission(1970) that such exemptions were permissible because other
nonreligious charitable and educational organizations also were tax exempt. The Supreme
Court also upheld Sunday closing laws, or “blue laws,” in McGowan v. Maryland(1961)
because they served a secular purpose by establishing a uniform day of rest.
The Free Exercise Clause. The second part of the First Amendment’s protection of
freedom of religion is known as the Free Exercise Clause. It prevents Congress from
“prohibiting the free exercise” of religion. The Establishment Clause limits government
policies that help religion, whereas the Free Exercise Clause restricts government actions
that hurt religion. In general, a person has an absolute right to freedom of religious belief;
however, the government can regulate the actions a person takes to express those beliefs.
Today, most Free Exercise cases do not involve laws that directly discriminate against a
specific denomination, but rather general laws that have a negative impact upon a
particular religious group.
Polygamy. The Supreme Court dealt with the Free Exercise Clause for the first time in
Reynolds v. United States(1879). Federal law prohibited polygamy in the territory of
Utah, but Reynolds claimed the law interfered with his right to exercise his Mormon
faith. The Court upheld Reynolds’s conviction, ruling that the Free Exercise Clause did
not apply to acts that were “violations of social duties or subversive of good order.” Some
sects of Mormons still practice polygamy or “plural marriage.”
Solicitation. The Court incorporated the Free Exercise Clause to apply to the states in
Cantwell v. Connecticut(1940). In that case, the Supreme Court ruled that the Free
Exercise Clause “embraces two concepts—freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second cannot be.” Still, the Court struck
down a Connecticut law that mandated licenses for religious solicitors. A key tenet of
Cantwell’s faith as a Jehovah’s Witness was zealous proselytizing. Jehovah’s Witnesses
were so active in civil liberties cases that from 1938 to 1946, their faith was the subject of
twenty-three Supreme Court decisions.
Saluting the Flag. Jehovah’s Witnesses also
believed that pledging allegiance to the flag was
a form of idolatry forbidden by the Ten
Commandments. The U.S. flag salute during the
1930s involved an extended arm movement
similar to the Nazi gesture of “Heil Hitler,” as
Jehovah’s Witnesses pointed out. Many German
Witnesses were executed by the Nazis for their
beliefs, such as refusing to give the Hitler salute.
Nonetheless, school districts in numerous
American communities passed regulations that
After World War II, the flag salute
permanently suspended any students who failed
changed from head salute followed by to salute the flag, including Jehovah’s Witness
outstretched arm to hand over heart.
children. In Minersville School District v.
Gobitis(1940), the Supreme Court upheld such
flag-salute laws against the free exercise claims
of Jehovah’s Witnesses, ruling that religious liberty must give way to political authority.
But several justices publicly changed their minds about the decision, particularly after it
precipitated the worst religious violence in the United States in decades. In 1940 alone,
more than 1,500 Witnesses were assaulted in 335 different attacks—including a
castration in Nebraska. Only three years after Gobitis,while America was fighting World
War II, the Supreme Court reversed itself in West Virginia State Board of Education v.
Barnette (1943). That case also involved Jehovah’s Witness schoolchildren.
Justice Robert H. Jackson’s majority opinion in Barnettemade clear that the compulsory
flag salute laws violated not only free exercise of religion but also free speech: “If there is
any fixed star in our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.” Justice Jackson
also emphasized that the Bill of Rights was designed to protect the rights of unpopular
minorities:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials, and to establish them as legal principles to be applied by the courts. One’s right
to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.
A Compelling Interest. For many years, the Supreme Court ruled on free exercise
claims using a particular legal test. First, the Court would decide if the religious beliefs at
issue were sincere, although they did not need to be factually correct. “Men may believe
what they cannot prove,” said the Court in United States v. Ballard(1944). Next, the
Court would normally require the government to show a “compelling interest”—a very
high legal standard—for keeping a policy that burdened a religious practice.
Using this test, the Court struck down a variety of laws as unconstitutional under the Free
Exercise Clause. In two cases involving Seventh-Day Adventists, the Supreme Court held
that people who quit jobs that conflict with their religious beliefs are entitled to
unemployment benefits. And in Wisconsin v. Yoder(1972), the Court ruled that the Amish
did not have to comply with a compulsory school attendance law beyond the eighth
grade. However, the Supreme Court did require the Amish to pay social security taxes,
despite their belief in self-sufficiency, in United States v. Lee(1982). The Court also ruled
in Bob Jones University v. United States(1983) that private religious schools may be
denied tax-exempt status if they discriminate based on race. In Goldman v.
Weinberger(1986), the Court upheld military rules prohibiting nonregulation headgear,
despite a Jewish officer’s request to wear a yarmulke on duty.
The Supreme Court significantly modified its “compelling interest” test for free exercise
cases in Employment Division v. Smith (1990). In that case, Al Smith, a member of the
Klamath tribe, was fired from his job as a substance abuse counselor for using peyote, a
hallucinogenic cactus, as part of a religious ceremony. Smith argued that his taking
peyote during a Native American ritual was no different than a Catholic alcoholism
counselor receiving wine at communion. Smith was denied unemployment benefits
because Oregon law prohibited the use of peyote. The Supreme Court ruled in Smiththat
when a criminal law was at issue, the government did not have to prove a compelling
interest, unless the law specifically targeted certain religious groups.
A wide variety of religious organizations have criticized the Smithdecision for unfairly
penalizing minority religions. Congress enacted the Religious Freedom Restoration Act
(RFRA) in 1993 to reinstate the compelling interest test in all free exercise cases.
However, the Supreme Court declared RFRA unconstitutional in 1997, saying that
Congress had exceeded its authority.
The freedoms of assembly and petition have been linked both in history and in Supreme
Court decisions. During the first century after the Bill of Rights was ratified, the right to
petition overshadowed the right to assembly, but later on they reversed roles. In fact,
fewer court decisions deal with freedom of petition than any other part of the First
Amendment.
Historical Background. In England, the Magna Carta of 1215 was the work of
noblemen who forced King John to address their petitions for changes in his practices.
Later, the English Parliament would not appropriate funds for the king unless he
answered its petitions. The English Bill of Rights gave all subjects the right to petition in
1689. One of the reasons listed in the Declaration of Independence for the American
Revolution is that King George III failed to hear petitions from the colonies. After the
war, several of the states protected assembly and petition in their new constitutions.
When the U.S. Bill of Rights was being drafted, some members of Congress argued that
freedom of assembly should be deleted because it was too trivial. However, another
representative maintained that without freedom of assembly, every other right in the Bill
of Rights could be taken away.
Peaceable Assembly. The Supreme Court incorporated freedom of assembly to apply to
the states in DeJonge v. Oregon (1937). However, the assembly must be peaceful;
citizens may not riot or block public streets. The Court held in Cox v. New Hampshire
(1941) that governments may restrict the time, place, and manner of assemblies, just as
with free speech, but such regulations cannot be used as a pretext to prevent free
assemblies. In Hague v. CIO (1939), the Court ruled that the mayor of Jersey City, New
Jersey, was using a permit system to prevent union organizing by the Committee for
Industrial Organization (CIO). However, in Lloyd Corporation v. Tanner (1972), the
Supreme Court held that freedom of assembly does not apply in shopping malls because
they are privately owned.
Sometimes a disruptive bystander tries to stop a peaceful assembly by exercising a
heckler’s veto. By provoking violence, such onlookers encourage police to end the
demonstration. In Feiner v. New York (1951), the Supreme Court upheld the actions of
police to end an inflammatory speech by Feiner, which the Court regarded as an
incitement to riot. But in Gregory v. Chicago (1969), the Court set aside the conviction of
comedian Dick Gregory for disorderly conduct during a civil rights march in an all-white
neighborhood. The Court ruled that the police should have done more to protect the
marchers.
Freedom of Association. Although it is not specifically listed in the First Amendment,
freedom of association is nonetheless protected by the Supreme Court. Some legal
scholars argue that it is implied by other rights in the First Amendment such as the
freedoms of assembly and petition. In NAACP v. Alabama (1958), the Court first
recognized freedom of association, overturning a law that required civil rights
organizations to turn over their membership lists. The Court also ruled in 1967 that state
loyalty oaths forcing teachers to declare they were not members of the Communist Party
violated the First Amendment.
Groups that exclude members based on their gender or sexual orientation also claim
protection by the First Amendment. In 1995, the Supreme Court held that a privately
sponsored St. Patrick’s Day parade can exclude homosexual groups whose viewpoint
they oppose. And in Boy Scouts v. Dale (2000), the Court upheld the First Amendment
right of the Boy Scouts to prevent gay men from becoming scoutmasters.
SCHENCK v. UNITED STATES
SUPREME COURT OF THE UNITED STATES
249 U.S. 47
March 3, 1919
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the
Espionage Act of June 15, 1917 by causing and attempting to cause insubordination, &c.,
in the military and naval forces of the United States, and to obstruct the recruiting and
enlistment service of the United States, when the United States was at war with the
German Empire, to-wit, that the defendants wilfully conspired to have printed and
circulated to men who had been called and accepted for military service under the Act of
May 18, 1917, a document set forth and alleged to be calculated to cause such
insubordination and obstruction. The count alleges overt acts in pursuance of the
conspiracy, ending in the distribution of the document set forth....The defendants were
found guilty on all the counts. They set up the First Amendment to the Constitution
forbidding Congress to make any law abridging the freedom of speech, or of the press....
According to the testimony Schenck said he was general secretary of the Socialist party
and had charge of the Socialist headquarters from which the documents were sent. He
identified a book found there as the minutes of the Executive Committee of the party. The
book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on
the other side of one of them in use, to be mailed to men who had passed exemption
boards, and for distribution. Schenck personally attended to the printing.... No reasonable
man could doubt that the defendant Schenck was largely instrumental in sending the
circulars about....
The document in question upon its first printed side recited the first section of the
Thirteenth Amendment, said that the idea embodied in it was violated by the
Conscription Act and that a conscript is little better than a convict. In impassioned
language it intimated that conscription was despotism in its worst form and a monstrous
wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit
to intimidation," but in form at least confined itself to peaceful measures such as a
petition for the repeal of the act. The other and later printed side of the sheet was headed
"Assert Your Rights." It stated reasons for alleging that any one violated the Constitution
when he refused to recognize "your right to assert your opposition to the draft," and went
on "If you do not assert and support your rights, you are helping to deny or disparage
rights which it is the solemn duty of all citizens and residents of the United States to
retain." It described the arguments on the other side as coming from cunning politicians
and a mercenary capitalist press, and even silent consent to the conscription law as
helping to support an infamous conspiracy. It denied the power to send our citizens away
to foreign shores to shoot up the people of other lands, and added that words could not
express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up
"You must do your share to maintain, support and uphold the rights of the people of this
country." Of course the documents would not have been sent unless it had been intended
to have some effect, and we do not see what effect it could be expected to have upon
persons subject to the draft except to influence them to obstruct the carrying of it out. The
defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the
First Amendment to the Constitution. Two of the strongest expressions are said to be
quoted respectively from well-known public men. It well may be that the prohibition of
laws abridging the freedom of speech is not confined to previous restraints, although to
prevent them may have been the main purpose, as intimated in Patterson v. Colorado.
We admit that in many places and in ordinary times the defendants in saying all that was
said in the circular would have been within their constitutional rights. But the character of
every act depends upon the circumstances in which it is done. The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theatre and
causing a panic. It does not even protect a man from an injunction against uttering words
that may have all the effect of force. The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree. When a nation is at war many things
that might be said in time of peace are such a hindrance to its effort that their utterance
will not be endured so long as men fight and that no Court could regard them as protected
by any constitutional right. It seems to be admitted that if an actual obstruction of the
recruiting service were proved, liability for words that produced that effect might be
enforced. The statute of 1917 punishes conspiracies to obstruct as well as actual
obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with
which it is done are the same, we perceive no ground for saying that success alone
warrants making the act a crime....
United States v. Schwimmer
279 U.S. 644 (1929)
Facts of the Case:
Schwimmer was unable to take the oath of allegiance to become a naturalized
citizen. She was born in Hungary and while in the United States to deliver a lecture
decided that she wanted to become a citizen. When asked if she would be willing
to take up arms in defense of her country she responded in the negative. She
stated that she believed in the democratic ideal but asserted that she was an
uncompromising pacifist. �My 'cosmic consciousness of belonging to the human
family' is shared by all those who believe that all human beings are the children of
God.�
Decision:
In an 8-1 decision, the Court ruled that it was proper for Schwimmer�s application
for citizenship be denied.
Majority Opinion: (Justice Butler)
The government has established statutes regulating who can become naturalized
citizens because of the benefits it brings. �Because of the great value of the
privileges conferred by naturalization, the statutes prescribing qualifications and
governing procedure for admission are to be construed with definite purpose to
favor and support the government. And, in order to safeguard against admission of
those who are unworthy, or who for any reason fail to measure up to required
standards, the law puts the burden upon every applicant to show by satisfactory
evidence that he has the specified qualifications.� The Court accepts the
importance the government has assigned to being able to compel military service
of its citizens if necessary. �And their opinions and beliefs as well as their
behavior indicating a disposition to hinder in the performance of that duty are
subjects of inquiry under the statutory provisions governing naturalization and are
of vital importance, for if all or a large number of citizens oppose such defense the
'good order and happiness' of the United States cannot long endure.� The
pacifism that Schwimmer professes may hinder her ability to develop the
nationalism that the country attempts to foster. The reason for her pacifism is
immaterial because she is not yet a citizen who possesses the rights of citizenship
that allow for conscientious objection.
Significance:
The Court places great emphasis on the interest of the state to foster feelings of
nationalism. It is proper for the country to prevent people who espouse feelings
contrary to the nation�s interests from the privilege of naturalization.
from: http://religiousfreedom.lib.virginia.edu/court/us_v_schw.html
UNITED STATES v. SCHWIMMER, 279 U.S. 644 (1929)
279 U.S. 644
UNITED STATES
v.
SCHWIMMER.
No. 484.
Argued April 12, 1929.
Decided May 27, 1929.
The Attorney General and Mr. Alfred A. Wheat, of Washington, D. C.,
for the United States.
[279 U.S. 644, 646]
Mrs. Olive H. Rabe, of Chicago, Ill., for respondent.
Mr. Justice BUTLER delivered the opinion of the Court.
Respondent filed a petition for naturalization in the District Court for the Northern
District of Illinois. The court found her unable, without mental reservation, to take the
prescribed oath of allegiance, and not attached to the principles of the Constitution of the
United States, and not well disposed to the good order and happiness of the same; and it
denied her application. The Circuit Court of Appeals reversed the decree, and directed the
District Court to grant respondent's petition. Schwimmer v. United States, 27 F.(2d) 742.
The Naturalization Act of June 29, 1906, requires:
'He (the applicant for naturalization) shall, before he is admitted to citizenship,
declare on oath in open court ... that he will support and defend the Constitution
and laws of the United States against all enemies, foreign and domestic, and bear
true faith and allegiance to the same.' U. S. C. tit. 8, 381 (8 USCA 381).
'It shall be made to appear to the satisfaction of the court ... that during that time
(at least five years preceding the application) he has behaved as a man of good
moral character, attached to the principles of the Constitution of the United States,
and well disposed to the good order and happiness of the same. ...' Section 382 (8
USCA 382).
Respondent was born in Hungary in 1877 and is a citizen of the country. She came to the
United States in August, 1921, to visit and lecture, has resided in Illinois since the latter
part of that month, declared her intention to become a citizen the following November,
and filed petition for naturalization in September, 1926. On a preliminary form, she stated
that she understood the prin- [279 U.S. 644, 647] ciples of and fully believed in our form of
government, and that she had read, and in becoming a citizen was willing to take, the
oath of allegiance. Question 22 was this: 'If necessary, are you willing to take up arms in
defense of this country?' She answered: 'I would not take up arms personally.'
She testified that she did not want to remain subject to Hungary, found the United States
nearest her ideals of a democratic republic, and that she could whole-heartedly take the
oath of allegiance. She said: 'I cannot see that a woman's refusal to take up arms is a
contradiction to the oath of allegiance.' For the fulfillment of the duty to support and
defend the Constitution and laws, she had in mind other ways and means. She referred to
her interest in civic life, to her wide reading and attendance at lectures and meetings,
mentioned her knowledge of foreign languages, and that she occasionally glanced
through Hungarian, French, German, Dutch, Scandinavian, and Italian publications, and
said that she could imagine finding in meetings and publications attacks on the American
form of government, and she would conceive it her duty to uphold it against such attacks.
She expressed steadfast opposition to any undemocratic form of government, like
proletariat, fascist, white terror, or military dictatorships. 'All my past work proves that I
have always served democratic ideals and fought-though not with arms-against
undemocratic institutions.' She stated that before coming to this country she had defended
American ideals, and had defended America in 1924 during an international pacifist
congress in Washington.
She also testified: 'If ... the United States can compel its women citizens to take up arms
in the defense of the country-something that no other civilized government has ever
attempted-I would not be able to comply with this requirement of American citizenship.
In this [279 U.S. 644, 648] case I would recognize the right of the government to deal with
me as it is dealing with its male citizens who for conscientious reasons refuse to take up
arms.'
The district director of naturalization by letter called her attention to a statement made by
her in private correspondence: 'I am an uncompromising pacifist. ... I have no sense of
nationalism, only a cosmic consciousness of belonging to the human family.' She
answered that the statement in her petition demonstrated that she was an uncompromising
pacifist. 'Highly as I prize the privilege of American citizenship, I could not compromise
my way into it by giving an untrue answer to question 22, though for all practical
purposes I might have done so, as even men of my age-I was 49 years old last Septemberare not called to take up arms . ... That 'I have no nationalistic feeling' is evident from the
fact that I wish to give up the nationality of my birth and to adopt a country which is
based on principles and institutions more in harmony with my ideals. My 'cosmic
consciousness of belonging to the human family' is shared by all those who believe that
all human beings are the children of God.'
And at the hearing she reiterated her ability and willingness to take the oath of allegiance
without reservation and added: 'I am willing to do everything that an American citizen
has to do except fighting. If American women would be compelled to do that, I would not
do that. I am an uncompromising pacifist. ... I do not care how many other women fight,
because I consider it a question of conscience. I am not willing to bear arms. In every
other single way I am ready to follow the law and do everything that the law compels
American citizens to do. That is why I can take the oath of allegiance, because, as far as I
can find out there is nothing that I could be compelled to do that I cannot do. ... With
reference to spreading propaganda among the women throughout [279 U.S. 644, 649] the
country about my being an uncompromising pacifist and not willing to fight, I am always
ready to tell any one who wants to hear it that I am an uncompromising pacifist and will
not fight. In my writings and in my lectures I take up the question of war and pacifism, if
I am asked for that.'
Except for eligibility to the Presidency, naturalized citizens stand on the same footing as
do native-born citizens. All alike owe allegiance to the government, and the government
owes to them the duty of protection. These are reciprocal obligations, and each is a
consideration for the other. Luria v. United States, 231 U.S. 9, 22 , 34 S. Ct. 10 (58 L. Ed.
101). But aliens can acquire such equality only by naturalization according to the uniform
rules prescribed by the Congress. They have no natural right to become citizens, but only
that which is by statute conferred upon them. Because of the great value of the privileges
conferred by naturalization, the statutes prescribing qualifications and governing
procedure for admission are to be construed with definite purpose to favor and support
the government. And, in order to safeguard against admission of those who are unworthy,
or who for any reason fail to measure up to required standards, the law puts the burden
upon every applicant to show by satisfactory evidence that he has the specified
qualifications. Tutun v. United States, 270 U.S. 568, 578 , 46 S. Ct. 425 ( 70 L. Ed. 738).
And see United States v. Ginsberg, 243 U.S. 472, 475 , 37 S. Ct. 422 (61 L. Ed. 853).
Every alien claiming citizenship is given the right to submit his petition and evidence in
support of it. And, if the requisite facts are established, he is entitled as of right to
admission. On applications for naturalization, the court's function is 'to receive testimony,
to compare it with the law, and to judge on both law and fact.' Spratt v. Spratt, 4 Pet. 393,
408 (7 L. Ed. 897). We quite recently declared that: 'Citizenship is a high privilege, and
when doubts exist concerning a grant of it, generally at least, [279 U.S. 644, 650] they
should be resolved in favor of the United States and against the claimant.' United States
v. Manzi, 276 U.S. 463, 467 , 48 S. Ct. 328, 329 ( 72 L. Ed. 654). And when, upon a fair
consideration of the evidence adduced upon an application for citizenship, doubt remains
in the mind of the court as to any essential matter of fact, the United States is entitled to
the benefit of such doubt and the application should be denied.
That it is the duty of citizens by force of arms to defend our government against all
enemies whenever necessity arises is a fundamental principle of the Constitution.
The common defense was one of the purposes for which the people ordained and
established the Constitution. It empowers Congress to provide for such defense, to
declare war, to raise and support armies, to maintain a navy, to make rules for the
government and regulation of the land and naval forces, to provide for organizing,
arming, and disciplining the militia, and for calling it forth to execute the laws of the
Union, suppress insurrections and repel invasions; it makes the President commander in
chief of the army and navy and of the militia of the several states when called into the
service of the United States; it declares that, a well-regulated militia being necessary to
the security of a free state, the right of the people to keep and bear arms shall not be
infringed. We need not refer to the numerous statutes that contemplate defense of the
United States, its Constitution and laws, by armed citizens. This court, in the Selective
Draft Law Cases, 245 U.S. 366 , page 378, 38 S. Ct. 159, 161 (62 L. Ed. 349, L. R. A.
1918C, 361, Ann. Cas. 1918B, 856), speaking through Chief Justice White, said that 'the
very conception of a just government and its duty to the citizen includes the reciprocal
obligation of the citizen to render military service in case of need. ...'
Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms
in the country's defense detracts from the strength and safety of the government. [279 U.S.
644, 651] And their opinions and beliefs as well as their behavior indicating a disposition
to hinder in the performance of that duty are subjects of inquiry under the statutory
provisions governing naturalization and are of vital importance, for if all or a large
number of citizens oppose such defense the 'good order and happiness' of the United
States cannot long endure. And it is evident that the views of applicants for naturalization
in respect of such matters may not be disregarded. The influence of conscientious
objectors against the use of military force in defense of the principles of our government
is apt to be more detrimental than their mere refusal to bear arms. The fact that, by reason
of sex, age or other cause, they may be unfit to serve does not lessen their purpose or
power to influence others. It is clear from her own statements that the declared opinions
of respondent as to armed defense by citizens against enemies of the country were
directly pertinent to the investigation of her application.
The record shows that respondent strongly desires to become a citizen. She is a linguist,
lecturer, and writer; she is well educated and accustomed to discuss governments and
civic affairs. Her testimony should be considered having regard to her interest and
disclosed ability correctly to express herself. Her claim at the hearing that she possessed
the required qualifications and was willing to take the oath was much impaired by other
parts of her testimony. Taken as a whole, it shows that her objection to military service
rests on reasons other than mere inability because of her sex and age personally to bear
arms. Her expressed willingness to be treated as the government dealt with conscientious
objectors who refused to take up arms in the recent war indicates that she deemed herself
to belong to that class. The fact that she is an uncompromising pacifist, with no sense of
nation [279 U.S. 644, 652] alism, but only a cosmic sense of belonging to the human
family, justifies belief that she may be opposed to the use of military force as
contemplated by our Constitution and laws. And her testimony clearly suggests that she is
disposed to exert her power to influence others to such opposition.
A pacifist, in the general sense of the word, is one who seeks to maintain peace and to
abolish war. Such purposes are in harmony with the Constitution and policy of our
government. But the word is also used and understood to mean one who refuses or is
unwilling for any purpose to bear arms because of conscientious considerations and who
is disposed to encourage others in such refusal. And one who is without any sense of
nationalism is not well bound or held by the ties of affection to any nation or government.
Such persons are liable to be incapable of the attachment for and devotion to the
principles of our Constitution that are required of aliens seeking naturalization.
It is shown by official records and everywhere well known that during the recent war
there were found among those who described themselves as pacifists and conscientious
objectors many citizens-though happily a minute part of all-who were unwilling to bear
arms in that crisis and who refused to obey the laws of the United States and the lawful
commands of its officers and encouraged such disobedience in others. Local boards
found it necessary to issue a great number of noncombatant certificates, and several
thousand who were called to camp made claim because of conscience for exemption from
any form of military service. Several hundred were convicted and sentenced to
imprisonment for offenses involving disobedience, desertion, propaganda and sedition. It
is obvious that the acts of such offenders evidence a want of that attachment to the
principles of the Constitution of which [279 U.S. 644, 653] the applicant is required to give
affirmative evidence by the Naturalization Act.
The language used by respondent to describe her attitude in respect of the principles of
the Constitution was vague and ambiguous; the burden was upon her to show what she
meant and that her pacifism and lack of nationalistic sense did not oppose the principle
that it is a duty of citizenship by force of arms when necessary to defend the country
against all enemies, and that her opinions and beliefs would not prevent or impair the true
faith and allegiance required by the act. She failed to do so. The District Court was bound
by the law to deny her application.
The decree of the Circuit Court of Appeals is reversed.
The decree of the District Court is affirmed.
Mr. Justice HOLMES.
The applicant seems to be a woman of superior character and intelligence, obviously
more than ordinarily desirable as a citizen of the United States. It is agreed that she is
qualified for citizenship except so far as the views set forth in a statement of facts 'may
show that the applicant is not attached to the principles of the Constitution of the United
States and well disposed to the good order and happiness of the same, and except in so far
as the same may show that she cannot take the oath of allegiance without a mental
reservation.' The views referred to are an extreme opinion in favor of pacifism and a
statement that she would not bear arms to defend the Constitution. So far as the adequacy
of her oath is concerned I hardly can see how that is affected by the statement, inasmuch
as she is a woman over fifty years of age, and would not be allowed to bear arms if she
wanted [279 U.S. 644, 654] to. And as to the opinion the whole examination of the
applicant shows that she holds none of the now-dreaded creeds but thoroughly believes in
organized government and prefers that of the United States to any other in the world.
Surely it cannot show lack of attachment to the principles of the Constitution that she
thinks that it can be improved. I suppose that most intelligent people think that it might
be. Her particular improvement looking to the abolition of war seems to me not
materially different in its bearing on this case from a wish to establish cabinet
government as in England, or a single house, or one term of seven years for the President.
To touch a more burning question, only a judge mad with partisanship would exclude
because the applicant thought that the Eighteenth Amendment should be repealed.
Of course the fear is that if a war came the applicant would exert activities such as were
dealt with in Schenck v. United States, 249 U.S. 47 , 39 S. Ct. 247. But that seems to me
unfounded. Her position and motives are wholly different from those of Schenck. She is
an optimist and states in strong and, I do not doubt, sincere words her belief that war will
disappear and that the impending destiny of mankind is to unite in peaceful leagues. I do
not share that optimism nor do I think that a philosophic view of the world would regard
war as absurd. But most people who have known it regard it with horror, as a last resort,
and even if not yet ready for cosmopolitan efforts, would welcome any practicable
combinations that would increase the power on the side of peace. The notion that the
applicant's optimistic anticipations would make her a worse citizen is sufficiently
answered by her examination which seems to me a better argument for her admission
than any that I can offer. Some of her answers might excite popular prejudice, but if there
is any principle of the Constitution that more imperatively calls for attachment than any
other it is the principle of free [279 U.S. 644, 655] thought-not free thought for those who
agree with us but freedom for the thought that we hate. I think that we should adhere to
that principle with regard to admission into, as well as to life within this country. And
recurring to the opinion that bars this applicant's way, I would suggest that the Quakers
have done their share to make the country what it is, that many citizens agree with the
applicant's belief and that I had not supposed hitherto that we regretted our inability to
expel them because they believed more than some of us do in the teachings of the Sermon
on the Mount.
Mr. Justice BRANDEIS concurs in this opinion.
Mr. Justice SANFORD (dissenting).
I agree, in substance, with the views expressed by the Circuit Court of Appeals, and think
its decree should be affirmed.
Syllabus for the week of March 10-14, 2007
7th grade Social Studies
Ms. Balogh, Mr. Fidler, Ms. Drown
“…if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of
free thought - not free thought for those who agree with us but freedom
for the thought that we hate.”
- Supreme Court Justice Oliver Wendell Holmes, 1929
This week, our study of the U.S. Constitution focuses upon a passage
even shorter than the Preamble, but equally powerful as a statement of rights
of the people: the 1st Amendment. Our activities this week will address this
essential question:
What happens when the cherished freedoms in the 1st Amendment
come into conflict with other cherished American values?
Before the week is over, you should all be able to do the following:
1. State the Five Freedoms guaranteed by the 1st Amendment
2. Understand how the US Constitution does not just concern life in
America in 1787 but is a “living document” equally important to our
life today
3. Debate specific Supreme Court cases where the freedoms promised in
the 1st Amendment come into conflict with other values
4. Demonstrate your learning by completing one from a variety of
activities that explore the many dimensions of the 1st Amendment
See the other side of this Syllabus for our in-class activities and our
homework
In-Class Activities and Homework:
Monday – In-class: Meet the 1st Amendment! Try your hand at a True-False
exercise so we can see what the class thinks.
Homework: Visit Mr. Fidler’s 1st Amendment Web sites. Pick a favorite and write
a 2-4 sentence recommendation of your favorite site explaining why students should
visit. I’ll post some of your recommendations on-line!
Tuesday – In-class: Work together in an on-line Scavenger Hunt. As you answer
questions, your will uncover clues to identify one of the “Heroes of the 1st
Amendment”.
Homework: 1.) Select your Choice Board assignment. Submit to me at least two
Web Sites and/or books you can use to find information to help you. I’ll pair you up
with someone interested in the same choice.
2.) Read the “Things You Can and Cannot Do” handout. Select one
idea that surprised you and write a paragraph explaining why you were surprised
and why you think the 1st Amendment says what it says about that idea
Wednesday - In-class: Discuss in groups readings related to the Five Freedoms
and report back to us on what you learned.
Homework: Decide with your partner how you will divide up the tasks required to
complete your Choice Board assignment. Write up for us one outline per
partnership showing us how you propose to divide up the work.
Thursday – In-Class: Learn about one specific Supreme Court 1st Amendment
case. What was each sides argument in the case? Given what you now know about
the 1st Amendment, how do you think it was decided?
Homework: Prepare for tomorrow, when you will have the entire class period to
work with your partner on your Choice Board assignment.
Friday – In-Class: Work on your Choice Board Assignment for the full period.
You will have the weekend to complete it, but take advantage of the time in class
with your partner as well as the opportunity to ask a teacher for help.
Homework: Complete your Choice Board assignment. We’ll give you a few
minutes together with your partner on Monday, and then it will be time to show us
your final product and talk to us about what it teaches us about the 1st Amendment.
Choice Board for 1st Amendment
1.
It is the fall of 1787. You
are scheduled to speak at
the Massachusetts ratifying
convention for the
Constitution. Write a
speech to convince the
delegates that they should
vote for the Constitution
only if it includes a Bill of
Rights.
2.
You are a member of
“Youth for 1st Amendment
Rights”. Develop a
presentation utilizing music
to convey the message that
1st Amendment rights are
important and where they
may be at risk today.
3.
Design a poster which
includes the entire text of
the 1st Amendment and
illustrates all of the five
freedoms contained in the
amendment.
4.
Create a game show to
teach the 1st Amendment.
Use as models either
“Jeopardy” or “1 vs. 100”,
or use a model of your own.
5.
Research your school’s
policy on removing books
from the school library.
This can include
interviewing the school
librarian. Produce a report
with your findings that can
include responses to a
number of questions on a
teacher-supplied handout.
6.
Dramatize one of the
Supreme Court cases
dealing with the 1st
Amendment. Make clear
the conflict, the Court’s
decision, and the reason the
case was decided as it was.
7.
Conduct a survey about
attitudes and beliefs
regarding the 1st
Amendment. Include at
least 50 7th grade students in
the survey. Use the First
Amendment Center survey
but include at least 3 of
your own questions.
Calculate and present your
findings.
8.
Research organizations that
an individual or school can
join to learn more about the
1st Amendment or to
support 1st Amendment
Rights. Select one to join
and present (either in
writing or orally) your
recommendation.
9.
Research one of the 1st
Amendment Supreme Court
cases. Assume you the
person in the case looking
to the court to defend your
freedom to act, speak, or
worship as you will. Write
a letter to the court
explaining your case and
why you feel the court
should find in your favor.
The 1st Amendment Anticipation Reaction Guide
Here it is: The 1st Amendment!
Name ___________
Date: ___________
Section #: _______
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.
Respond to each statement
T=True
F=False
Following our lessons this week, you will have the opportunity to respond again
Today
Following our lessons
____ 1.
The 1st Amendment is part of the Bill of Rights.
____
____ 2.
The 1st Amendment was ratified in 1791, but its words have
changed many times since because new technologies like
television and the Internet change how we can communicate.
____
____ 3.
The 1st Amendment recognizes that you have freedom of speech.
This means that you can yell “fire” in a crowded movie theater.
____
____ 4.
It is one of the powers of the U.S. President to understand the
1st Amendment and make decisions when someone complains
that the government has taken away their promised freedoms.
____
____ 5.
When the U.S. Government believes that it is doing the right
thing, it can stop the press from from printing nasty and
mean-spirited criticism.
____
____ 6.
Because of the freedoms of the 1st Amendment, individuals and
____
the press can call for a revolt, similar to the American Revolution,
against the government
____ 7.
Burning an American flag in protest is considered by our courts
to be an act of speaking.
____
____ 8.
While the 1st Amendment allows adults all kinds of protections,
middle school students do not have these rights.
____
____ 9.
If a large enough majority of Americans wanted a time for prayers ____
in public schools, then a brief voluntary prayer would be allowed.
Thirty Classics for Young People – What Do They Share in
Common?
Spend a minute quietly looking at this list, where you’ll see
some classroom favorites. Think about what they share in
common and be ready to share ideas with your neighbor
I Know Why the Caged Bird Sings by Maya Angelou
The Chocolate War by Robert Cormier
The Adventures of Huckleberry Finn by Mark Twain
Harry Potter (Series) by J.K. Rowling
Forever by Judy Blume
Bridge to Terabithia by Katherine Paterson
Alice (Series) by Phyllis Reynolds Naylor
Heather Has Two Mommies by Leslea Newman
My Brother Sam is Dead by James Lincoln Collier and Christopher
Collier
10. The Catcher in the Rye by J.D. Salinger
11. The Giver by Lois Lowry
12. Goosebumps (Series) by R.L. Stine
13. A Day No Pigs Would Die by Robert Newton Peck
14. The Color Purple by Alice Walker
15. Earth's Children (Series) by Jean M. Auel
16. The Great Gilly Hopkins by Katherine Paterson
17. A Wrinkle in Time by Madeleine L'Engle
18. Fallen Angels by Walter Dean Myers
19. In the Night Kitchen by Maurice Sendak
20. The Stupids (Series) by Harry Allard
21. The Witches by Roald Dahl
22. The Goats by Brock Cole
23. To Kill a Mockingbird by Harper Lee
24. The Outsiders by S.E. Hinton
25. The Boy Who Lost His Face by Louis Sachar
26. Are You There, God? It's Me, Margaret by Judy Blume
27. The Adventures of Tom Sawyer by Mark Twain
28. Where's Waldo? by Martin Hanford
29. View from the Cherry Tree by Willo Davis Roberts
30. Jump Ship to Freedom by James Lincoln Collier and Christopher
Collier
1.
2.
3.
4.
5.
6.
7.
8.
9.
Did you know that you have two Freedoms granted by the First Amendment regarding
Religion?
Pilgrims were called Separatists back in England because they wanted independence
from the established Church of England.
In 1620, they sailed the stormy Atlantic for 63 days on the tiny Mayflower, seeking
freedom of religion in the New World.
The First Amendment contains two clauses about the Freedom of Religion. The first part
is known as the Establishment Clause, and the second as the Free Exercise Clause.
The Establishment Clause prohibits the government from passing laws that will establish
an official religion or preferring one religion over another. The courts have interpreted
the establishment clause to accomplish the separation of church and state.
The Free Exercise Clause prohibits the government from interfering with a person’s
practice of his or her religion. However, religious actions and rituals can be limited by
civil and federal laws.
Religious freedom is an absolute right, and includes the right to practice any religion of
one’s choice, or no religion at all, and to do this without government control.
Your rights to Freedom of Religion and the free exercise thereof means:
The Freedom of Religion is an inalienable right.
The First Amendment provides for the Freedom of Religion for all Americans.
The Free Exercise Clause provides that government will neither
control nor prohibit the free exercise of one’s religion.
The government will remain neutral.
So, go ahead and pray - or don’t. Go to church - or sleep in.
It’s up to you.
Got something to say?
Freedom of Speech was once only for the rich and powerful. Royal governors,
clergymen, and a powerful few in the early days of the colonies were the only folks
allowed to speak their minds.
Speaking out against things you didn’t like could land you in The BIG HOUSE!
Now, thanks to the Bill of Rights, Free Speech is a protected right for everyone.
Most people don’t realize that 200 years have passed since the First Amendment was
ratified... and in those 200 years people have fought hard to make sure that when the
boundaries of “free speech” evolve, the original intent of the Founding Fathers remains
true...
Everyone has the right to responsibly speak their minds!
Freedom of Speech is the right to freely express yourself - encompassing all types of
expression, including the freedom to create and distribute movies, take photographs,
paint, write songs, make up dances, dress how you want and all other forms of expressive
communication.
If someone can see you doing something, you are communicating!
The boundaries of FREE SPEECH continue to be STRETCHED!
YOU NEED TO KNOW THE BOUNDARIES
Go ahead and say it. The First Amendment’s got your back!
Like that Blog?
Thank John Peter Zenger.
Thanks to John Peter Zenger you can sit in your room and share your thoughts on your
own personal blog and not worry that the government will toss you in jail. Zenger was a
newspaper publisher who saw his life’s work go up in flames and was then forced to
defend himself against libel charges in 1735 when the government didn’t like what he
had to say. The Trial of John Peter Zenger is often seen as the cornerstone court case of
American press freedom.
It's generally known as "the Press" in our country because, when the founding fathers
wrote freedom of the press into the Bill of Rights, the printing press was the most popular
form of mass communication. Today we call it "the media."
"PRESS" is an extremely broad term. It includes all systems that make information
available to people: newspapers, television, radio, books, lectures, movies, art, dance,
telephone, cassettes, CDs, DVDs, magazines, electronic bulletin boards, computer
networks, billboards, video tapes... you name it.
All of the world's major religions, philosophies, schools of political thought, and systems
of government were spread through writing. In fact, the spread of civilization, religion,
and the written word occurred simultaneously, each dependent on the other.
Protecting the of Freedom of the Press leads to...
The Discovery of Truth
Facilitating Participation by Citizens in Political Decision-Making
Creating a More Adaptable and Stable Community
Assuring Individual Self-Fulfillment
Checking Abuse of Governmental Power
Promoting Tolerance
Creating a More Interesting Community
Protecting the Freedom of the Press protects your right to know.
Think it's no BIG DEAL?
There was once a time when you could be arrested for gathering on a public street...
Once thought of as the lesser of the
Five Fundamental Freedoms, Assembly has really gotten some major respect from the
Supreme Court...
Originally, the right to assemble was considered less important than the right to petition.
Did you know that getting together to chill with friends at the mall is protected by the
First Amendment?
Getting together to share ideas, coming together to share common beliefs and act upon
those beliefs has given the right to assemble major street credit.
Fighting for the right to vote, civil rights and protesting war is protected by the right to
assemble. Even going to church or helping with the American Red Cross is protected.
And know this...
Picketing is protected when it is for a lawful purpose and is conducted in an orderly
manner and publicizes some type of grievance. Many groups and organizations use
assembly as a way to get the word out.
The right of every single United States citizen to peacefully...
Parade and Gather
Demonstrate support or opposition of public policy
Express one's views
...is guaranteed by the freedom of speech and
the right to peaceably assemble.
You think life isn’t fair sometimes?
Once upon a time if you didn’t like the king or queen’s decisions you couldn’t say a
word... and if you did... you would land yourself in some hot water...
No really, they could boil you.
Back in 1215 people wanted to be able to petition their government on righting wrongs...
addressing the issues brought forth by the people... without being beaten or thrown in jail.
The right to petition was enumerated in the Declaration of Independence – which was a
statement telling the world just why the United States was rebelling against King George
III.
As a United States citizen, you have the right to Petition...
Congress
state government and legislatures
courts at any level
Under the right of petition, individuals and groups of citizens and corporations may lobby
for laws and policies that favor them.
from http://www.illinoisfirstamendmentcenter.com/petition.php