a.k.a. The Bill of Rights
 Many of the Founders
opposed a Bill of Rights
because limits had
already been established
on the government
 The Federalists promised
to pass a Bill of Rights if
the Constitution was
ratified
 The House adopted 17,
the Senate 12 and the
states ratified 10 by 1791
 The Bill of Rights is a list
 Each clause of the Bill of
of “thou shalt not”
against the government
Rights is open to
interpretation and the
final interpreter is the
Supreme Court
 “Congress shall make
no”
 “shall not be infringed”
 The Bill of Rights applies
primarily to the federal
government until
passage of the 14th
Amendment
 14th Amendment gives
former slaves (and any
other person) citizenship
 Most importantly it says
that “no state” can
deprive anyone of their
rights, establshing the
incorporation doctrine
 Jefferson, “wall of
separation”
 Colonial history of the
United States based on
religious freedom, a fact
expressed in Article VI of
the Constitution
 Clauses designed to
prevent government
interference in religion
 Engel v. Vitale (1962)
 Supreme Court rules school
sponsored prayer in schools is
unconstitutional– “…religion is
too personal, too sacred, too
holy, to permit its ‘unhallowed
perversion’ by a civil
magistrate…governmentally
established religions and
religious persecutions go hand
in hand”
 Abington v. Schempp (1963)
 Court rules school sponsored bible
readings are unconstitutional
 Lemon v. Kurtzman (1971)-government aid to religious
schools must meet 3 criteria (the Lemon test)
 It must have a secular purpose
 It must neither advance nor inhibit religion
 Create no entanglement of government with religion
 Epperson v. Arkansas (1968)-the teaching of evolution
in schools
 Pledge of Allegiance
 Lee v. Weisman (1992)-school sponsored graduation
prayer
Jackson derided symbols as a “primitive
 West Virginia v. Barnette
but effective way of communicating
(1943)
ideas,” and chided that “a person gets
 Court upheld the right of
from a symbol the meaning he puts into
Jehovah Witness students
it, and what is one man’s comfort and
to not say the prayer
inspiration is another’s jest and scorn.”
because it violated their
religion
 “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.”
Justice Jackson
 Free exercise can be restricted if the
 Wisconsin v. Yoder
government can show an interest in
doing so such as polygamy in
Reynolds v. United States (1878)
 In Oregon v. Smith (1990) the Court
abolished the compelling interest
test only to have Congress counter
their decision by passing the
Freedom Restoration Act of 1993-now
the burden of proof is on the
government to restrict free exercise
 Gonzales v. O Centro Espirita
Beneficiente Unaio do Vegetal (2006)
the Court rules that it is Ok for
members to take a hallucinogenic tea
(1972)-Amish parents
allowed to keep their
parents out of school
past the 8th grade
because it violated
their free exercise
rights
 Have we taken
political correctness
too far
 Freedom of Expression v. Competing Government Interest
 Freedom of speech “is the heart of our government”—
Justice Hugo Black
 But, “a single revolutionary spark may kindle a fire that,
smoldering for a time, may burst into a sweeping and
destructive conflagration.” Justice Edmund Sanford
 “The principle of free thought-not free thought for those
who agree with us but freedom for the thought we hate.”
Justice Oliver Wendell Holmes
 “The freedom to think as you will and to speak as you think
are means indispensable to the discovery and spread of
political truth.” Justice Louis Brandeis
 Political speech
 Schenck v. US (1919)-Schenck
presented a “clear and present”
danger to national security by
opposing the draft; Oliver
Wendell Holmes explained that
speech is not an absolute right so
that “a man can falsely shout fire
in a theatre”
 Gitlow v. New York (1925)incorporates 1st amendment to
states
 Brandenburg v. Ohio (1969)government can limit speech if
there is “immediate lawless
action”
 US v. Obrien (1968)-upheld
conviction of man burning draft
card
 Symbolic speech
 Tinker v. Des Moines (1969)-Court upholds right to
symbolic speech and student rights by
declaring that students do not shed their rights
at the schoolhouse gate as long as it does not
interfere with the educational process
 Texas v. Johnson (1989)-Court defends the right
to burn an American flag; "If there is a bedrock
principle underlying the First Amendment, it is
that the government may not prohibit the
expression of an idea simply because society
finds the idea itself offensive or disagreeable.“
Justice William Brennan
 Buckley v. Valeo (1976)-Court upholds
campaign contributions as a form of symbolic
speech
 Press
 Near v. Minnesota (1931)-the Court rules against prior restraint, or the
government’s attempt to prevent certain information from being
published; this case concerned an editorial that criticized public
officials
 New York Times v. US (1971)-the Court rules against the government
when they tried to prevent the publication of the Pentagon Papers,
documents critical of American involvement in Vietnam and would
damage national security
 Libel and slander-statements made with a “reckless disregard
of the truth”
 New York Times v. Sullivan (1964)-the Court rules against
Sullivan and says in order for a story to be libel it must be untrue
and be a result of “actual malice” and have a “reckless disregard”
for the truth which is very difficult to prove
 Obscenity and pornography- “I’ll know it when I see it”
 Roth v. US (1957)- “utterly without redeeming social importance”
 Miller v. California (1973)- 3 part test created to apply
“contemporary community standards” to determine if something
is obscene
 Reno v. ACLU (1997) – a 7-2 Court rules that a law making it a
crime to make indecent material available to children on the
Internet violated the 1st Amendment
 Fighting Words-language that “by their very utterance inflict
injury or tend to incite an immediate breach of the peace.”
Chaplinsky v. State of New Hampshire (1942)
 Student speech Hazelwood School District v. Kuhlmeier (1988) – school can
restrict speech when it goes against the purpose of school;
citing the Tinker case the Court ruled that schools can’t limit
its speech, but doesn’t have to promote it
 Bethel v. Fraser (1986) – not unconstitutional to restrict a
students student council speech
 Morse v. Frederick (2007) – Bong Hits 4 Jesus, Court rules
that principal in the right to suspend the student for what he
termed a nonsensical phrase but was believed to be a
message about drug use during a school event
 Association/assembly-Courts accept reasonable time,
place, manner restrictions on assembly
 Skokie case
 Boy Scouts v. Dale (2000)
 Individual right or collective right
 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.
 District of Columbia v Heller (2008)-the Court
establishes the right of an individual to own a gun, but
that does not mean the state can’t regulate who shall
own them and places to have them