CLASS SET
FIRST PRINCIPLES
The First Amendment applies to all Americans. Our nation affirms the truth of inalienable rights for all,
working for more than 200 years to make the ideals expressed in the First Amendment a reality in the lives of
all Americans. These rights were so important to early citizens and their leaders, many states refused to ratify
the Constitution of the United States without the promise of amendments that would protect individual rights.
Here are some “First Principles” to help you understand the First Amendment rights and understand how they
influence our daily lives.
1. The First Amendment affirms the freedom of the individual.
American government is based upon the concept that all human beings are born with certain rights or
freedoms. The First Amendment guards these rights by prohibiting the government from denying citizens their
rights. The government does not give us our rights. Its role is to guard the rights that we already have.
We, as individuals, have freedom of conscience. Religious liberty, or freedom of conscience, protects the
beliefs of everyone, not just those of recognized faith communities. We are free to worship —or not to
worship — as we choose. The government may not tell us what church, synagogue, mosque or temple to
attend or whether, where and how we should pray.
As individuals, our ideas and beliefs are our own. We are free to develop and express our thoughts. Through
our free press, we have access to a vast range of information. We may criticize our government if we see fit to
do so. Judgments about ideas are for individuals to make, not for government to decree.
The First Amendment guarantees we may associate with people and join groups of our own choosing. We may
ask or lobby the government to correct certain wrongs or support our beliefs.
2. Free expression is the foundation — the cornerstone — of democracy.
The First Amendment is based on the premise that people who can freely share information (especially about
their government) will be informed and able to make sound choices about what leaders to elect, what forms
of government they want, what laws to enact. The freedom to exchange information about the government
enables people to seek alternatives to bad government.
3. The First Amendment tells the government to keep its “hands off” our religion, our ideas, our ability to
express ourselves.
“Congress shall make no law …” means that as far as possible the government may not interfere with our
fundamental rights. The government may not pass laws that take away our First Amendment freedoms or that
force us to express ideas — including religious beliefs — that we do not embrace.
But the First Amendment is not absolute. “No law” does not mean “absolutely no law.” For instance, human
sacrifice cannot be permitted in the name of freedom of conscience. The Supreme Court has affirmed that
some limits must be placed on our freedoms. The government, for example, may regulate the time, place and
manner, but not regulate solely on the basis of the content of our beliefs, ideas, and expressions. We may
need to hold a permit before we march in support of a particular cause, but we should not have to worry
about the government telling us we have no right to believe in that cause or express that idea.
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4. Other people have rights, too.
The First Amendment is based upon the conviction that all human beings have inalienable rights. Our
commitment to rights is inseparably linked to our civic responsibility to guard those rights for all others. When
faced with unpopular views or unrefined speech, members of the public may ask, “Why doesn't the
government do something about that?” The answer? Neither government nor a majority of the public has the
authority to stop an unpopular idea.
Because the First Amendment belongs to everyone — to each individual — it encourages us to respect the
right of others to hold their viewpoints and religious beliefs. The First Amendment protects minority
viewpoints and helps us to understand that limiting the rights of some people may eventually limit the rights
of all.
5. When rights collide, government must balance them.
Sometimes the government plays a role in balancing our rights. When two rights collide, tension and
controversy may result. What happens, for example, when a person's right to a fair trial conflicts with our right
to learn if a fair trial is actually taking place through accounts reported in our free press? What happens when
an individual’s right to personal privacy conflicts with the free flow of information? The government (through
the courts) may make decisions that protect both rights to the fullest extent possible.
In addition to knowing where government officials draw the line when regulating expression, it is important to
understand who may and may not control what we say or write or perform. Public school administrators are
government officials and, like city officials, have both power and limits regarding regulation of expression.
Although students do not give up their First Amendment rights when they come to school, the United States
Supreme Court has determined that school officials may restrict students’ rights if the administrators
determine that exercising those rights would interfere with the school’s mission of educating its students.
However, as government officials, they may not control or censor expression to the degree that a private
organization or family might. The First Amendment does not apply to private school officials.
6. The First Amendment helps us make choices.
In the “marketplace of ideas,” we may choose which views to support and which ones to reject. When all ideas
are allowed to flourish, we — as individuals — may decide what ideas and concepts to question, embrace or
reject. First Amendment advocates say it best: The antidote to distasteful or hateful speech is not censorship,
but more speech.
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FREEDOM OF SPEECH
I.
II.
III.
IV.
V.
“Congress shall make no law . . abridging the freedom of speech…” – this clause has come to mean both the freedom to
give and to hear speech
Belief is the most protected right, action can be the most restricted but speech falls somewhere in between.
The Supreme Court began to federalize the BofR using the 14th Amendment in free speech cases.
The government both federal and state has long tried to restrict speech in an effort to provide a ‘safe and orderly’
society in perceived and real times of crisis. The Alien and Sedition Acts of 1798 are the first example, the Patriot Act is
the most recent example.
Over the course of US history, the Supreme Court has established a variety of tests to determine if speech is protected.
Some have been abandoned but many are still used in combination with each other. Here is an explanation of each
test. A hypothetical example of a university passing a speech code that bans ‘racially abusive’ language is used as the
example to illustrate the tests.
A. Bad Tendency Doctrine
1. State legislatures, not the courts should generally determine when speech is limited.
2. Speech can be limited when it might lead to something bad happening (bad tendency).
3. The university speech code banning ‘racially abusive’ language would be constitutional
4. A restrictive test that is no longer used.
B. Clear and Present Danger Doctrine
1. Schenck v. US, 1919 was the case that first established the principle although it was established in the
dissenting opinion which was then referred to in later cases in the majority opinion.
2. Speech can be suppressed only if there is an imminent threat to society e.g. falsely shouting “Fire!” in a
crowded theater.
3. The university speech code would be unconstitutional because there is no imminent threat to society
from ‘racially abusive’ language.
4. Minimally restrictive test that is still used although questions arise around any restrictions on speech in
time of crisis.
C.
Preferred Position Doctrine
1. Free speech is of the utmost importance and should therefore occupy a ‘preferred position’ above other
values and government should virtually never restrict it.
2. Political speech in particular holds this position in a democracy.
3. The university code would be clearly unconstitutional.
4. A test that essentially permits almost all speech. It is still used and this doctrine has been at the heart of
several key speech rulings in the last 20 years.
D. Prior Restraint Doctrine
1. This is the act of blocking speech before it is given. First came up in NY Times v. US, 1971 about the
Pentagon Papers.
2. Such action has been ruled and presumed by courts as unconstitutional. In the NY Times case the court
ruled that the papers had to be published because while potentially embarrassing to the government they
did not pose any kind of threat to national security.
3. The university code would be unconstitutional even though it doesn’t directly deal with prior restraint.
4. This doctrine is very restrictive so if an action seems to fall under ‘prior restraint’ then courts will rule it
unconstitutional. Exceptions are made in cases of national security but even in those cases the burden is
on the government to show why speech should be restrained.
E.
Overbreadth Doctrine
1. This test establishes the idea that speech restrictions cannot be overly-broad.
2. If the government is going to seek to restrict or regulate speech it must be very specific and have
compelling reason to do so. It cannot create a restriction that is too broad in scope or language.
3. The university code would clearly be unconstitutional.
4. This test is still used although it is rare that a case comes before the court that can be viewed in this light.
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F.
Vagueness Doctrine
1. Speech restrictions cannot be written in too vague a manner. They must be clear and understandable to
the average person.
2. As with the overbreadth doctrine there must be compelling reason for speech restriction that the average
person can also understand.
3. The university speech code would be unconstitutional.
4. This test along with overbreadth are key because the principle behind both is any restrictions that can be
defined as either vague or overly broad cause a ‘chilling effect’ on speech meaning individuals aren’t clear
if what they want to express is protected or not so they err on side of caution and choose to remain silent.
G. Least Drastic Means Doctrine
1. Laws cannot restrict speech if there are other means to handle the problem.
2. The last thing that should be done is to restrict speech, all other avenues must be attempted first.
3. The university speech code would be unconstitutional.
4. This test coupled with the preferred position doctrine once again emphasizes the centrality of speech to a
free democratic society.
H. Additional key ideas about speech
1. ‘Pure speech’ – spoken words particularly in public forums is most protected.
2. ‘Speech plus’ – speech + action is more limited and restrictions depend on action.
3. Time, place and manner of speech in public spaces can be regulated thus needing a permit for a rally.
4. Government can’t force individuals to ‘give’ speech either.
5. The Government also has speech rights that are protected.
6. Centrality of political speech gives it special protection it is the least restricted form of speech.
7. Restricted speech – occurs if speech interferes with another right as long as the restrictions are content
neutral. Speech that is restricted includes
 Obscenity – Miller v. California 1973, established the obscenity test with the famous articulation of
the idea that obscenity is clear beacuse ‘I know it when I see it.’ Thus pornographic materials can/are
displayed/sold with restrictions like a wrapper around the front that a magazine like Newsweek
doesn’t have.
 Defamation (libel & slander) – defaming an individual and their reputation is restricted but the
burden of proof is on the individual who claims defamation.
 Commercial speech – this is the most restricted form of speech. Companies’ advertisements are very
much regulated and this allows the FCC to among other things ban certain language from network
shows – the infamous list of 12 words you can’t say on TV – now down to 7.
 Hate speech – ‘Fighting Words’ – speech that leads directly to illegal action or violence can be
restricted. Chaplinisky v. New Hampshire 1945 and Brandenburg v. Ohio 1968, established this
standard however the burden of proof is on the government to show connection between speech
and actions.
 Speech in special places – speech can be restricted in certain places like military bases, prisons and
schools. The standard is that if speech that materially and substantially disrupts the educational
purpose or undermines the basic education mission then it can be restricted. So that is why you
cannot wear a t-shirt to school that says “F**k Ms. Hancock” and refuse to remove it when told to do
so by claiming free speech.
 Symbolic Speech – this is where freedom of expression comes into play. This speech is usually under
the category of ‘speech plus’ and so while some restrictions can be placed for public safety and
protection of property it cannot be unduly restricted. Thus you can burn an American flag thanks to
Texas v. Johnson, 1993. You cannot burn your army draft card.
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FREEDOM OF THE PRESS
I. “Congress shall make no law . . .abridging the freedom of the press…” this clause has largely been interpreted to mean
the same as free speech clause.
II. Restrictions and protections of the press largely follow those of speech although again in cases such as advertisements or
pornography there have been greater restrictions upheld as constitutional.
FREEDOM OF ASSEMBLY AND PETITION
I. “Congress shall make no law abridging . . the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances.” this clause has largely been interpreted as a support to free speech and while some restrictions
are placed on assembly and association for example curfew laws, if the speech is protected then the assembly is usually
as well with some regulation.
II. This clause provides constitutional justification for lobbying elected officials.
III. It applies only to public not private places. There is the ‘hecklers veto’ which states that: an individual whose speech is
disruptive to the assembly, to the point of effectively preventing the assembly, then they can be removed and cannot
claim free expression. Individuals who are verbally protesting at a Senate committee hearing and are removed would
have their removal from the hearing fall under this interpretation
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FREEDOM OF RELIGION
I.
The Establishment Clause
A. “Congress shall make no law respecting an establishment of religion” - the basic meaning of the clause has generally
been held to mean that government may not establish an official religion.
1. There are debates and conflicts that immediately arise as a result of this fairly broad interpretation which
have existed since the ratification of the Constitution. Two views have emerged as the two sides of the
argument:
 “Accomodationist View” – government should bend a bit and allow a certain degree of church/state
blending e.g. allowing nativity scenes on city property, allowing a non-denominational prayer in
public schools.
 “Separationist View” – government should allow virtually no blending of church and state. There
should be a “wall of separation” (Jefferson) between the two.
2. These two views have been used by the courts over the course of US history and have led to some of the
major ‘culture wars’ in the US.
3. On balance the court has tended towards the ‘accomodationist view’ in most cases except those dealing
with religion in the public school.
B.
Lemon v. Kurtzman - The Lemon Test – in 1972 the Supreme Court established a test that they use to determine if a
statute or practice violates the establishment clause
1. The test had 3 provisions. If any of these provisions is present in the case then the statute or practice is
deemed unconstitutional.
1) Does the law/statute or action have a religious/nonsecular purpose?
2) Does the law/statue or action advance or inhibit religion?
3) Does the law/statute or action require “excessive entanglement” by the government to execute/enforce –
this provision was reduced by the Court in a 1997 ruling due to the vagueness of the provision.
C.
Lynch v. Donnelly - Endorsement test
The endorsement test, proposed by Justice Sandra Day O’Connor, asks whether a particular government action
amounts to an endorsement of religion. According to O’Connor, a government action is unconstitutional if it creates a
perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.
She expressed her understanding of the establishment clause in the 1984 case of Lynch v. Donnelly, in which she states,
“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s
standing in the political community.” Her fundamental concern was whether the particular government action conveys
“a message to non-adherents that they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members of the political community.” O’Connor’s
“endorsement test” has, on occasion, been subsumed into the Lemon test. The justices have simply incorporated it into
the first two prongs of Lemon by asking if the challenged government act has the purpose or effect of advancing or
endorsing religion.
The endorsement test is often invoked in situations where the government is engaged in expressive activities.
Therefore, situations involving such things as graduation prayers, religious signs on government property, religion in
the curriculum, etc., will usually be examined in light of this test.
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II.
Free Exercise clause
A. ”Congress shall make no law . . .prohibiting the free exercise [of religion] thereof” – the basic meaning of the clause
is it provides freedom to worship without government interference.
B. There is a problem that immediately arises as there is a contradiction between the Establishment Clause and the
Free Exercise Clause e.g. a law requiring students to salute the flag might violate the freedom to worship for a
Jehovah’s Witness but exempting the student from doing so may be viewed as favoring one religion thus violating
the Establishment Clause.
C. The key distinction is drawn between belief and practice. Belief is always allowed and 100% protected while
practice can be regulated or restricted. Freedom of worship is a relative not absolute right and once again the
court must balance between the two.
D. The standard used by courts for judging whether or not religious expression is constitutional has changed.
1. Old Standard established in 1944 and used through 1990 – government could not deny religious
expression unless there was a compelling purpose to do so. The burden of proof on restriction was on
the government. Thus banning polygamy or human sacrifice would fall under this standard.
2. New Standard – established in Oregon v. Smith, 1990 – individual must demonstrate that the beliefs are
‘sincerely held’ and must prove that the government action forces them to violate their religion. Burden
of proof is on the individual.
3. Compelling Interests – the government cannot specifically target a religion with a law e.g. it can’t ban
animal sacrifice in order to prevent such acts in Santeria but can pass laws to enforce general criminal
laws e.g. banning human sacrifice or female genital mutilation.
III.
E.
Religious practices that have been restricted
1. Polygamy (Reynolds v. United States, 1876)
2. Not vaccinating children of Christian Scientists before they enter school
3. Not paying social security taxes (Amish)
4. Wearing a Jewish skullcap (yarmulke) in the military
F.
Religious practices that have been permitted
1. Not saluting the flag in public school (Jehovah’s Witnesses case)
2. Covering up the New Hampshire state motto ‘Live Free or Die’ on a car license plate (Jehovah’s Witnesses
case)
3. Not sending children to public school past the 8th grade (Amish case)
4. Animal sacrifice (Santeria)
 Many of these rulings have used the 14th Amendment to provide additional legal and constitutional
foundation for the decision thus federalizing the Free Exercise Clause
Article 6 of the Constitution bans religious tests and oaths as a qualification to hold public office so while most who are
sworn in choose to say “So help me God” and place their hand on a Bible or other holy text it is not required.
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