AP GOVERNMENT CHAPTER 16:
FIRST AMENDMENT FREEDOMS
 The Constitution lays down the fundamental principles of a free society: freedom of
conscience and freedom of expression.
RIGHTS IN THE ORIGINAL CONSTITUTION
 Writ of Habeas Corpus- “produce the body”- the writ is a court order directing any official
having a person in custody to produce the prisoner in court and explain why the prisoner is
being held. The Writ was merely a judicial inquiry to determine whether a person in
custody was being held as the result of the action of a court with proper jurisdiction.
 IF a judge finds a petitioner is detained unlawfully, the judge may order the person’s
immediate release.
 The Supreme Court and Congress have severely restricted the habeas corpus jurisdiction of
federal judges.
 The Antiterrorism and Effective Death Penalty Act of 1996 restricts the number of times a
person may be granted a habeas corpus review, stops appeals for most habeas petitions at
the level of the U.S. Court of Appeals, and calls for deference by federal judges to the
decisions of state judges unless they are clearly “unreasonable.”
 Ex Post Facto Law- retroactive criminal law that makes a particular act a crime that was not
a crime when an individual committed it, increasing punishment for a crime after the crime
was committed.
 Bills of Attainder- are legislative acts inflicting punishment, including deprivation of
property, on named individuals or members of a specified group without a trial.
 Rights in the Original Constitution:
 1. Habeas Corpus
 2. No bills of attainder
 3. No ex post facto laws.
 4. No titles of nobility
 5. Trial by jury in national courts
 6. Protection for citizens as they move from one state to another, including the right of
travel.
 7. Protection against using crime of treason to restrict other activities; limitation on
punishment for treason.
 8. Guarantee that each state has a republican form of government.
 9. No religious test oaths as a condition for holding a federal office.
THE BILL OF RIGHTS AND THE STATES
 In a sense, it was the American people who drafted our basic charter of rights.
 The Federalists argued that the Constitution established a limited government that would not
threaten individual freedoms, and therefore a bill of rights was unnecessary.
 Bill of Rights applies only to the National Government.
 The national government has generally shown less tendency to curtail civil liberties than
state and local governments have.
 Due Process Clause- in the 5th Amendment limiting the power of the national government;
states that no person shall be deprived of life, liberty or property without due process of lawby the STATES.
 Gitlow v. New York- 1925- the Court announced that it assumed “that freedom of speech
and of the press which are protected by the First Amendment from abridgment by Congress
are among the fundamental personal rights and liberties protected by the due process clause
of the 14th Amendment from impairment by the states.”
 This case made it for the first time that the US Constitution protected freedom of speech
from abridgment by state and local governments.
 Selective Incorporation- the process by which provisions of the Bill of Rights are brought
within the scope of the 14th Amendment and applied to state and local governments.
 Today the 14th Amendment imposes on the states all the provisions of the Bill of Rights
except those of the 2nd and 3rd Amendments, the 5th Amendment provision of indictment by
a grand jury, the 7th Amendment right to a jury trial in civil cases, and the 9th and 10th
Amendments.
 Selective incorporation of the Bill of Rights in to the 14th Amendment is probably the most
significant constitutional development since the writing of the Constitution. It has
profoundly altered the relationship between the national government and the states. It made
the federal courts the most Important protectors of our liberties.
 The New Judicial Federalism contend that the US Constitution should set minimum but not
maximum standards to protect our rights.
 Key Concepts:
 Civil Liberties- the freedoms of all persons that are constitutionally protected against
governmental restraint; the freedoms of conscience, religion, and expression which are
secured by the 1st Amendment. Protected by due process and equal protection clauses of
5th and 14th Amendments.
 Civil Rights- the constitutional rights of all persons, not just citizens, to due process and
the equal protection of the laws; the constitutional right not to be discriminated against
by governments because of race, ethnic background, religion, or gender. Protected by
due process and equal protection clauses of the 5th and 14th Amendments.
 Rights of Persons Accused of Crimes- the rights of all persons, guilty as well as
innocent, to protection from abusive use by the government of the power to prosecute
and punish persons accused of violating criminal laws. Secured by the 4th, 5th, 6th, 8th
and 14th Amendments.
 Political Rights- the rights of citizens to participate in the process of governance flowing
from the right to vote. Secured by the 14th, 15th, 19th, 23rd Amendments.
 Legal Privileges- privileges granted by governments to which we have no constitutional
right and which may be subject to conditions or restrictions ex. Driver’s license. Once
such privileges are granted, we may have a legal right to them, and they cannot be
denied except for “reasonable reasons” and by appropriate procedures.
 Common Law- judge-made law based on the interpretation and application of legal
principles- the principle of freedom of speech, for example.
 Civil Law- law evolved from Roman law and based on codes that are strictly applied by
judges. Civil law also applies to disputes between individuals and the government that
carry no criminal penalties.
FREEDOM OF RELIGION
The Establishment Clause
 Establishment Clause- clause in the first amendment that states that Congress shall make no
law respecting an establishment of religion. It has been interpreted by the Supreme Court
as forbidding governmental support to any or all religions.
 The establishment clause goes beyond merely separating government from religion by
forbidding the establishment of a state religion. It is designed to prevent 3 evils:
government sponsorship of religion, government financial support of religion, and
government involvement in religious matters.
 Everson v. Board of Education of Ewing Township 1947- decision that the establishment
clause creates a “wall of separation” between church and state and prohibits any law or
governmental action designed to specifically benefit any religion, even if all religions are
treated the same.
 Lemon v. Kurtzman- 1971 laid down a three part test:
 1. A law must have a secular legislative purpose
 2. It must neither advance nor inhibit religion
 3. It must avoid “excessive government entanglement with religion.”
 The “Lemon” test is often used, but he justices remain divided over how much
separation between government and religion is required by the first amendment.
 Endorsement Test- championed by Justice Sandra Day O’Connor- belief that the
establishment clause forbids governmental practices that a reasonable observer would
view as endorsing religion, even if there is no coercion.
 The Court concluded that when a nativity scene was displayed in a s hopping district
together with Santa’s house and other secular and religious symbols of the Christmas
season, there was little danger that a reasonable person would conclude that the city
was endorsing religion. But the Constitution does not permit a city government to
display a nativity scene on the steps of the city hall.
 Nonpreferentialist Test- used by the Court’s most conservative justices- Rehnquist, Scalia
and Thomas, it is the belief that the Constitution prohibits favoritism toward any
particular religion but does not prohibit government aid to all religions. In their view,
government may accommodate religious activities and even give non preferential
support to religious organization so long as individuals are not legally coerced into
participating in religious activities and religious activities are not singled out for
favorable treatment.
 Strict Separation- view of the more liberal justices- Souter, Stevens, Ginsburg and
Breyer- the belief that even indirect aid for religion, such as scholarships or teaching
materials, and aid for students attending private religious schools, crosses the line
separating the government from religion.
 The establishment clause forbids states- including state universities, colleges and school
districts- from introducing devotional exercises into the public school curriculum,
including school graduations and events before football games.
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
It is not unconstitutional for students to pray in a school building, it is unconstitutional
for it to be sponsored or encouraged by public school authorities.
They hold prayer before each opening of Congress- but it is considered ok because the
legislators, as adults, are not “susceptible to religious indoctrination or peer pressure.”
That students in school are seen to be.
Vouchers and State Aid for Religious Schools
 A troublesome area focuses around states’ providing financial assistance to parochial and
other religious schools.
 Tax funds may be used to construct buildings and operate educational programs at churchrelated schools as long as the money is not spent directly on buildings used for religious
purposed or on teaching religious subjects.
 Government aid to students who attend religious schools is permissible, because such aid
has a secular purpose.
 At the level of elementary and secondary schools, however, the constitutional problems
are more complicated. The secular and religious parts of institutions and instruction are
much more closely interwoven, and students are younger and more susceptible to
indoctrination.
 Some states have provided tax credits or deductions for parents who send their children to
private, largely religious run schools, and such deductions or credits available only to
parents of c children attending nonpublic schools are unconstitutional, but allowing
taxpaying parents to deduct or take a credit from their state income taxes for what they
paid for tuition to send their children to school-public or private- is constitutional, even if
most of the benefit goes to those sending their children to private religious schools.
 The Supreme Court has also approved using tax funds to provide students who attend
primary and secondary church-operated schools with textbooks, standardized tests,
lunches and transportation.
 One hot controversy is whether states may also use tax money to give parents vouchers for
the tuition of children to attend schools of their choice, including religious schools.
 Opponents argue that such programs violate the establishment clause while supporters
counter that they do not and argue that the denial of vouchers for attending religious
schools violates the free exercise clause and denies parents the freedom of school choice
in opting out of dysfunctional public schools.
The Free Exercise Clause
 Free Exercise Clause- clause in the first amendment that states that Congress shall make no
law prohibiting the free exercise of religion. It also affirms that no government has
authority to compel us to accept any creed or to deny us any right because of our beliefs or
lack of them.
 The right to practice a religion has had less protection than the right to hold particular
beliefs.
 The First Amendment was thought to throw a “mantle of protection” around religious
practices, and the burden was on the government to justify interfering with them in the least
restrictive way.
 Employment Division v. Smith- 1990- the Rehnquist court significantly altered the
interpretation of the free exercise clause by discarding the compelling governmental
interest for overriding the interests of religious minorities. As long as a law is generally
applicable and does not single out and ban religious practices, the law may be applied to
conduct even if it burdens a particular religious practice.
 Religious Freedom Restoration Act of 1993 RFRA- aimed to override the Smith decision
and to restore the earlier test prohibiting the government- federal, state or local-from
limiting a person’s exercise of religion unless the government demonstrates a compelling
interest that is advanced by the least restrictive means.
 The Supreme Court then ruled the RFRA to be unconstitutional because Congress was
attempting to define, rather enforce or remedy, constitutional rights and was thereby
assuming the role of the courts.
 Some Christian students at the University of Wisconsin objected to the use of mandatory
student activity fees for funding groups they deemed offensive and contrary to their
religious beliefs. They argued that they should be exempt from paying that portion of their
fees, but he Supreme Court rejected their claim.
FREE SPEECH AND FREE PEOPLE
 Only through free and uncensored expression of opinion can government be kept
responsive to the electorate and political power transferred peacefully.
 Free speech is not simply the personal right of individuals to have their say; it is also the
right of the rest of us to hear them.
 Americans overwhelmingly support the principle of freedom of expression general. Yet
some draw the line at ideas they consider dangerous or when speech attacks them or is
critical of their race, religion, or ethnic origin.
 But, what is a “dangerous idea?”
 “Freedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the
heart of the existing order.”
 Even thought the First Amendment explicitly denies Congress the power to pass any law
abridging freedom of speech, the amendment has never been interpreted in absolute terms.
 The freedoms of speech and of the press are limited.
 At one extreme is the right to BELIEVE as we wish
 The other extreme is ACTION, which is usually subject to governmental restraint.
 SPEECH stands somewhere between belief and action. It is not an absolute right, like
belief, but neither is it as exposed to governmental restraint, like action.
 It usually falls to the courts to decide and to defend the free speech of individual and
minority dissenters.
Judging Drawing the Line
 Plainly, questions of free speech require that judges weigh a variety of factors: what was said?
In what context? How was it said? Which level of government is attempting to regulate the
speech- a city council speaking for a few people, or Congress, speaking for the entire nation?
Historical Constitutional Tests
 There are 3 constitutional tests developed in the first part of the 20th Century:
 Bad Tendency Test- interpretation of the 1st Amendment that would permit legislatures
to forbid speech encouraging people to engage in illegal action. The test was
abandoned because it swept too broadly and ran contrary to the fundamental premises
underlying the first amendment as the guardian of our democracy. It seems to still be
the view today of some who want schools/colleges to punish some staff who express
hateful or offensive ideas.
 Clear & Present Danger Test- formulated by Justice Oliver Wendell Holmes Jr. in
Schenck v. United States in 1919. It hold that the government cannot interfere with
speech unless the speech presents a clear and present danger that it will lead to evil or
illegal acts. For example, speech leading to a riot, the destruction of property or the
corruption of an election. The test concedes that speech is not an absolute right and
that no government should be allowed to restrict speech unless it can demonstrate a
close connection between the speech and an imminent lawless action.
 Preferred Position Doctrine- comes close to the position of the freedom of expressionthe use of words and pictures should rarely, of ever, be curtailed. It holds that freedom
of expression is so essential to democracy that governments should not punish persons
for what they say, only for what they do. Says that judges have a special duty to
protect the freedoms of speech and expression and should be most skeptical about
trespassing on them. Judges had to draw lines between nonprotected and protected
speech, as well as between speech and nonspeech.
NONPROTECTED AND PROTECTED SPEECH
 Nonprotected speech- libel, obscenity, fighting words and commercial speech, which
are not entitled to constitutional protection in all circumstances.
Libel
 Libel- published defamation or false statements by the government or sued by
individuals.
 Seditious Libel- defaming, criticizing, and advocating the overthrow of governmentwas once subject to criminal penalties but no longer is. It is rooted in common law of
England which has no First Amendment protections.
 The Federalists persuaded themselves that national safety required some suppression
of speech.
 There is a distinction between seditious speech and seditious action- conspiring to
commit and engaging in violence against the government, which can be prosecuted
and punished.
 Smith Act of 1940- forbade advocating the overthrow of the government, distributing
material advocating the overthrow of government by violence, and organizing any
group having such purposes.
 Since then, the Court has substantially modified constitutional doctrine, giving all
political speech First Amendment protection.
 New York Times v. Sullivan – 1964- seditious libel was declared unconstitutional.
Now neither Congress nor any government may outlaw mere advocacy of the abstract
doctrine of violent overthrow of government.
 The Supreme Court, in subsequent cases, has established guidelines for libel cases
and severely limited state power to award monetary damages in libel suits brought by
public officials against critics of official conduct.
 Neither public officials nor public figures can collect damages for comments made
about them unless they can prove with “convincing clarity” that the comments were
made with “actual malice.”- statements were made with a knowing or reckless
disregard for the truth.
Obscenity & Pornography
 Obscene publications are not entitled to constitutional protection, but the Supreme
Court has had difficulty defining obscenity.
 In Miller v. California- 1973- the Court finally agreed on a constitutional definition of
obscenity.
 A work may be considered obscene if:
 1. The average person, applying contemporary standards of the particular
community, would find that the work, taken as a whole, appeals to a prurient
interest in sex.
 2. The work depicts or describes in a patently offensive way sexual conduct
specifically defined by the applicable law or authoritatively construed
 3. The work, taken as a whole, lacks ser4ious literary, artistic, political, or
scientific value.
 The Miller standard clarified that only hard-core pornography is constitutionally
unprotected.
 State and local governments can also ban the sale of “adult” magazines to minors,
even if it would not be considered legally obscene if sold to adults.
 The Court has al so held that child pornography- sexually explicit materials either
featuring minors or aimed at them- is not protected by the First Amendment.
 The Supreme Court left standing a rule upholding an act of Congress forbidding the
sale of rental on military property of magazines or videos whose “dominant theme” is
to portray nudity in a lascivious way.
Fighting Words
 Fighting words- words that by their very nature inflict injury on those to whom they
are addressed or incite them to acts of violence.
 IF The words are abusive, offensive, and insulting or that they create anger, alarm, or
resentment is not sufficient.
 Thus, a four-letter word on a t-shirt is not a fighting word in the constitutional sense,
even though it was offensive and angered some people.
Commercial Speech
 Commercial Speech- such as advertisements and commercials used to be unprotected
because it was deemed to have lesser value than political speech. They receive less
first amendment protection to discourage fake and misleading ads.
 In recent years, the Court has reconsidered and extended more protection to
commercial speech as it has to fighting words.
 44 Liquormart v. Rhode Island- 1996- the Court struck down a law forbidding the
advertising of the price of alcoholic drinks.
 It now appears that states may forbid and punish only false and misleading
advertising along with advertising the sale of anything illegal.
Protected Speech
 All other expression is constitutionally protected, and courts strictly scrutinize
government regulation of such speech.
 Prior Restraint- censorship imposed before a speech is made or a newspaper is
published- usually presumed to be unconstitutional.
 The only prior restraints approved by the Court relate to military and national security
matters- such as the disclosure of troop movements and to high school authorities’
control over student newspapers.
 Student newspapers at colleges and universities receive the same protections as other
newspapers because they are independent and financially separate from the college or
university.
 Laws must not be so vague that people do not know whether their speech would
violate the law and hence are afraid to exercise protected freedoms.
 Laws must now allow the authorities who administer them so much discretion that
they may discriminate against people whose views they don’t like.
 A legislature may not pass a law that impinges on First Amendment freedoms if
other, less drastic means are available.
 Laws concerning the time, place, or manner of speech that regulate some kinds of
speech but not others or that regulate speech expressing some views but not others are
much more likely to be struck down than those that are content-neutral or viewpointneutral, that is, laws that apply to all kinds of speech and to all views.
FREEDOM OF THE PRESS
 They contend that the First Amendment gives them a right of access, a right to go
wherever they need to go to get information.
Does the Press Have the Right to Withhold Information?
 They claim the right to do so themselves, including the right to keep information from
grand juries and legislative investigating committees.
 Without this right to withhold information, reporters insist, they cannot assure their
sources of confidentiality, and they will not be able to get the information they need
to keep the public informed.
 The Supreme Court has refused to acknowledge that reporters have a constitutional
right to ignore legal requests such as subpoenas and to withhold information from
governmental bodies.
 Many states have passed press shield laws providing some protection for reporters
from state court subpoenas.
Does the Press Have the Right To Know?
 The Supreme Court has refused to acknowledge a constitutional right of the press to
know, although it did concede that there is a First Amendment right for the press,
along with the public, to be present at criminal trials.
 Many states have adopted sunshine laws requiring government agencies to open their
meetings to the public and press.
 Congress requires most federal executive agencies to open hearing to the public.
 Federal and state courtroom trials are also open, but judicial conferences in which the
judges discuss how to decide the cases, are not.
 Congress has authorized the president to establish a classification system to keep
some public documents and governmental files secret, and it is a crime for any person
to divulge such classified information.
 Freedom of Information Act- FOIA- 1966- liberalized access to nonclassified federal
government records. This law makes the records of federal executive agencies
available to the public, with certain exceptions, such as private financial transactions,
personnel records, criminal investigation files, interoffice memorandums, and letters
used in internal decision making.
 The burden is on an agency to explain its refusal to supply material.
 President Bill Clinton issued an executive order calling for automatic declassification
of almost all government documents after 25 years.
 Electronic Freedom of Information Act- 1996- requires most federal agencies to put
their files on line and to establish an index of all their records.
Free Press vs. Fair Trials
 When newspapers and television report in vivid detail the facts of the crime, they may
so inflame the public that finding a panel of impartial jurors and conducting a fair
trial is difficult.
 In the US, free comment is protected.
 Judges may impose “gag orders” as a remedy for prejudicial publicity.
 Most states permit televising courtroom proceedings and court TV programs have
become very popular.
OTHER MEDIA AND COMMUNICATIONS
 When the First Amendment was written, freedom of “the press” referred to leaflets,
newspapers and books.
 Today the amendment protects other methods of the media as well- the mails, motion
pictures, billboards, radio, television, cable, telephones, fax machines and the
Internet.
The Mails
 The use of the mails is almost as much a part of free speech as is the right to use our
tongues.
 Although government censorship of mail is unconstitutional, household censorship is
not.
 The Court has sustained a law giving householders the right to ask the postmaster to
order mailers to delete their names from certain mailing lists and to refrain from
sending any advertisement that they believe to be “erotically arousing or sexually
provocative.”
 Congress may forbid- and has forbidden- the use of mailboxes for any materials
except those sent through the US mails.
Handbills, Sound Trucks, and Billboards
 Religious and political pamphlets, leaflets, and handbills have been historic weapons
in the defense of liberty and their distribution is constitutionally protected.
 The use of their contemporary counterparts, sound trucks and billboards, are also
protected.
Motion Pictures and Plays
 Prior censorship of films to prevent the showing of obscenity is not necessarily
unconstitutional; however, laws calling for submission of films to a government
review board are constitutional only if there is a prompt judicial hearing.
 The burden is on the government to prove to the court that the particular film in
question is obscene.
 Live performances are also entitled to constitutional protection.
Broadcast and Cable Communications
 Of all mass media, broadcasting receives the least First Amendment protection.
 The Federal Communications Commission (FCC) regulates the entire system by
granting licenses and making regulations for their use.
 The First Amendment would prevent censorship if the FCC tried to impose it.
 The First Amendment does not, however, prevent the FCC from imposing sanctions
on stations that broadcast indecent or filthy words, even if they are not legally
obscene. (Howard Stern)
 Nor does the First Amendment prevent the FCC from refusing to renew a license if,
in its opinion, a broadcaster does not serve the public interest.
 The Supreme Court allows more governmental regulation of broadcasters because
space on the airways is limited.
 Telecommunications Act of 1996- allows telephone companies, broadcasters, and
Cable TV stations to compete with one another. The act calls for many new
regulations- for example, regulating that all new television sets are sold in the US
with V-Chips.
 Congress may authorize cable operators to refuse access to leased channels for
“patently offensive” programs.
 US v. Playboy Entertainment Group- 2000- the Court underscored the greater
protection for cable than for broadcast television and held that while broadcast
television may be required to provide programming for children and not air violence
at certain times, such rules do not apply to cable television because unwanted
programming can be blocked by homeowners.
Telecommunications and the Internet
 Congress is struggling with issues raised by cyberspace communication.
 It has imposed a moratorium on state taxation of commercial transactions on the
Internet.
 How do existing laws against copyright piracy apply to the WWW? Should there be
national regulation of junk e-mail or can state laws take care of it? In what ways may
Congress regulate indecent and obscene material on the internet?
 Legislators and judges will have to apply traditional constitutional principles to new
technologies and means of communication.
 Reno v. ACLU- 1997- the Court struck down provisions of the Communications
Decency Act of 1996 that had made it a crime to send obscene or indecent messages
to anyone under 18 years of age. In doing so, the Court emphasized the unique
character of the Internet, holding that it is less intrusive than radio and broadcast
television.
FREEDOM OF ASSEMBLY
 It took judicial authorities to defend the rights of unpopular speakers and marchers,
but it is not always the “bad guys” whose rights have to be protected by the courts. It
also took judicial intervention in the 1960s for Martin Luther King Jr and his
followers to march in the streets of Birmingham.
 It is almost always easier and certainly more politically prudent, to maintain order by
curbing public demonstrations by unpopular groups.
 If police did not have the right to order groups to disperse, public order would be at
the mercy of those who resort to street demonstrations to create tensions and provoke
street battles.
 A current controversy surrounds AG John Ashcroft’s decision in 2002 to allow law
enforcement agents to go undercover to monitor activities and assemblies in any
public place- including mosques, churches, and chat rooms- in combating
international terrorism. He thereby abandoned the Department of Justice’s own
guidelines adopted in 1976 after Congress discovered FBI agents were conducting
surveillance and infiltrating the civil rights movement and others engaged in lawful
activities.
Public Forums and Time, Place and Manner Regulations
 The Constitution protects the right to speak, but it does not give people the right to
communicate their views to everyone, in every place, at every time they wish.
 Governments may not censor what can be said, but they can make “reasonable” time,
place and manner regulations for protests or parades, limited public forums, and non
public forums.
 Public forums are places historically associated with the free exercise of expressive
activities such as streets, sidewalks and parks.
 Other kinds of public property, such as rooms in a city hall, or in a school after hours,
may be designated as limited public forums, available for assembly and speech for
limited purposes.
 Nonpublic forums include public facilities such as libraries, courthouses, prisons,
schools, swimming pools, and government offices that are open to the public, but are
not public forums.
 People may be excluded from such places as government offices or a school if they
engage in activities for which the facilities were not created.
 Civil Disobedience- deliberate refusal to obey a law or comply with the orders of
public officials as a means of showing opposition- even if peaceful, it is not a
protected right.
 The Supreme Court has struck down provisions that prohibit protesters from
expressing their views.
 The connection between constitutional limitations and judicial enforcement is an
example of the auxiliary precautions.
 In the US, we also appeal to judges when we fear our freedoms are in danger.
