First Amendment
Freedoms
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.
The First Amendment Freedoms
1. The framers of the U.S. Constitution had constraining the national
government as one of their foremost aims.
2. A list of fundamental rights that the government may not infringe
on were not included in the main body of the Constitution.
3. Popular protest over the absence of this list of human rights led to
the agreement to add the Bill of Rights.
4. Understanding of these civil liberties, these fundamental First
Amendment rights, and the existence of a free society are
paramount.
5. The Bill of Rights technically applied only to the national
government.
6. The Fourteenth Amendment and interpretation of the due process
clause led to the nationalization of the Bill of Rights through
“selective incorporation.”
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 to 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 of holding federal office
10.Protection against the impairment of contracts
The Bill of Rights

Debate over necessity at Constitutional Convention.

Guarantees specific rights and liberties.

Ninth Amendment states other rights exist.

Tenth Amendment reserves rights to states and people.
The Bill of Rights and the States
•Civil liberties
•Civil rights
•Rights of persons accused of crimes
•Political rights
•Legal privileges
•Common law
•Civil law
Teachers’ Lounge
The Bill of Rights was ratified
a. by State legislatures prior to the signing of
the Constitution.
b.at the same time as the Constitution in 1787.
c. after the signing of the Constitution, in
1791.
d.in the early nineteenth century.
Incorporation


Until 20th century, Bill of Rights did not apply to states.
14th Amendment’s due process clause raises
questions.

Begins to apply after Gitlow v. New York (1925).

Case is first step in incorporation doctrine.

Not all guarantees have been incorporated.

Selective incorporation of fundamental freedoms.
Selective Incorporation and the Application of the Bill of Rights to the
States
Right
Amendment
Year
Public use and just compensation for the taking
Of private property by the government.
5
1897
Freedom of speech
1
1925
Freedom of the press
1
1931
Fair trial
6
1932
Freedom of religion
1
1934
Freedom of assembly
1
1937
Free exercise of religion
1
1940
Separation of religion and government
1
1947
Right to a public trial
6
1948
Right against unreasonable searches and seizures
4
1949
Freedom of association
1
1958
Exclusionary rule
4
1961
Ban against cruel and unusual punishment
8
1962
Right to counsel in felony case
6
1963
Right against self-incrimination
5
1964
Right to confront witness
6
1965
1, 3, 4, 5, 9
1965
Right to an impartial jury
6
1966
Right to a speedy trial and compulsory process
For obtaining witnesses
6
1967
Right to a jury trial in nonpetty cases
6
1968
Protection against double jeopardy
5
1969
Right of privacy
Freedom of Speech, Assembly,
and Association
The most controversial freedom
associated with expression is that of
a. beliefs
b. actions
c. speech
d. press
Freedom of Speech is so essential
• to a democratic political system;
• for the intellectual enlightenment of a society and
the human race;
• for citizens to make intelligent judgments about
candidates, political parties, and public policies;
• for the discovery of the truth;
• in a free society to trade in a “marketplace of
ideas.”
Speech takes several different forms
• each subject to different levels of constitutional protection
Forms of Speech
Schenck v. United States
Whitney v. California
Gitlow v. New York
Brandenburg v. Ohio
Political Speech
Virginia State
Board of
Pharmacy v.
Campaign
Virginia
Citizens Consumer,
Council, Inc.
Speech
Buckley v. Valeo
McConnell v.
Federal Election
Commission
Bates v. State Bar of
Commercial
Speech
Arizona
United States v. O’Brien
Tinker v. Des Moines School Dist.
Texas v. Johnson
Symbolic Speech
United States v. Eichman
Schenck v. United States
Advocates
Docket: 437
Citation: 294 U.S. 47
(1919)
Appellant: Charles Schenck
Appellee: United States
Abstract
Oral Argument: January 9, 1919
Decision: March 3, 1919
Issues:
Categories: first amendment, freedom of speech,
freedom of the press, search and seizure
Facts of the Case

During World War I, Schenck mailed circulars to
draftees. The circulars suggested that the draft
was a monstrous wrong motivated by the
capitalist system. The circulars urged “Do not
submit to intimidation” but advised only peaceful
action such as petitioning to repeal the
Conscription Act. Schenck was charged with
conspiracy to violate the Espionage Act by
attempting to cause insubordination in the
military and to obstruct recruitment.
Question

Are Schenck’s actions (words, expression)
protected by the free speech clause of the First
Amendment?
Conclusion

In articulating the clear and present danger test
to determine free speech cases, Justice Oliver
Wendell Holmes, speaking for a unanimous
Court, ruled that Schenck’s writings would be
protected in ordinary times but “the character of
every act depends upon circumstances in which
it is done.” He compared writing such a
pamphlet during wartime to falsely shouting fire
in a crowded theater, starting that the context of
a speech determines its permissibility. Only
words that produce both a clear (obvious) and a
present (immediate) danger are prohibited.
Freedom of Speech, Assembly,
and Association
•Historical Constitutional Tests
•The Clear and Present Danger Test
•The Bad Tendency Test
•The Preferred Position Doctrine
Which of the following affects free
speech?
a. The Bad Tendency Test
b. The Clear and Present Danger Test
c. The Preferred Position Doctrine
d. all of the above
The Bad Tendency doctrine gives to
______ the power to decide what
kinds of speech can be outlawed.
a. courts
b. legislatures
c. the people
d. chief executives
The limits of free speech were set forth
as the ______________ test by Justice
Holmes in Schenck v. United States.
a. The Bad Tendency Test
b. The Clear and Present Danger
Test
c. The Preferred Position Doctrine
d. Freedom of Information Act
The Clear and Present Danger doctrine
has been related to all of the following
EXCEPT
a. hate-speech codes at a university.
b. insulting racial remarks in public.
c. insulting sexual remarks in public.
d. insults directed at candidates for
public office.
The doctrine that free speech cannot be
restricted unless there is a close
connection between a speech and illegal
action is called
a. the Clear and Present Danger test.
b. the speech and dangerous result test.
c. the speech and action test.
d. absolutist doctrine.
Nonprotected Speech
These types of speech are without social value:
•Libel - Written defamation of another person.
Especially in the
case of public officials and public figures, the constitutional tests
designed to restrict libel actions are very rigid
•Seditious libel - Defaming, criticizing, and
New York Times
v.
Sullivan
advocating the overthrow of the government
•Obscenity and Pornography
Miller v. California
•Fighting Words - Words that by their very nature inflict injury
on those to whom they are addressed or incite them to acts of violence
•Commercial Speech - Advertisements and commercials for
products and services; they receive less First Amendment protection,
primarily to discourage false and misleading ads
Nonprotected and Protected Speech
Doctrines used to measure limits of
governmental power to regulate speech
•
•
•
•
Prior restraint
Void for vagueness
Least drastic means
Content and viewpoint neutrality
The current standards for obscenity
are made
a. by the Supreme Court
b. at the state level
c. at the community level
d. by Congress
Currently Supreme Court guidelines
related to obscenity:
a. assume that obscenity is protected
by the U.S. Constitution
b. allow for the application of
community standards
c. do little to allow for restriction of
child pornography
d. find it easy to separate the obscene
from that which is not
Persons may be convicted for one of
the following
a. possessing obscene materials
b. selling obscene literature
c. importing obscene literature from
abroad
d. writing obscene material
All of the following are forms of
non-protected speech except
a. libel
b. symbolic speech
c. obscenity
d. commercial speech
Freedom of the Press
•Does the Press Have the Right to Withhold Information?
•Does the Press Have the Right to Know?
•Free Press Versus Fair Trials

Film censorship



Gradually films have been
protected
Still can be censored by the
government
Media claims for
special rights


Reporter’s privilege
Press Shield Laws
In 2005, New York
Times reporter
Judith Miller was
jailed for two
months for refusing
to disclose her
sources to a grand
jury
Which of the following statements is
true:
a. The First Amendment prevents the FCC
from refusing to renew a radio license if
in its opinion a broadcaster has not served
the public interest.
b. The federal regulation of radio and
television is based on the scarcity of
broadcast channels available.
c. Current federal laws protect commercial
speech.
d. Household censorship is unconstitutional.
Which of the following is true?
a. The mere fact that a statement is wrong or
even defamatory is not sufficient to sustain a
charge of libel.
b. The Freedom of Information acts make most
nonclassified records of federal agencies
public.
c. In a past decision the Supreme Court did not
support barring of the press from a criminal
case.
d. All of the above.
Other Media and Communications
•The Mails
•Handbills, Sound Trucks and Billboards
A state cannot restrain the distribution of leaflets
merely to keep its streets clean
•Motion pictures and plays
Constitutionally protected
•Broadcast and Cable Communications
Of all mass media, broadcasting receives the least
First Amendment protection
Regulated by the FCC
•Telecommunications and the Internet