Chapter 5 Notes
First Amendment Rights
Part I 158-176
Bill of Rights
• First 10 amendments added to Constitution as
a result of the compromise between
Federalists and Anti-Federalists
• List of freedoms and rights to be protected by
the national government
• 9th and 10th Amendments highlight AntiFederalists fear of a too powerful national
government
Incorporation Doctrine
• Bill of Rights originally only applied to the
national government
• Barron v. Baltimore (1833): Supreme Court ruled
Bill of Rights only limited the action of the U.S.
government, not those of the states
• Fourteenth Amendment and due process clause
incorporated the Bill of Rights to the states
– “No state shall deprive any person of life, liberty, or
property without due process of law”
Substantive Due Process
• Supreme court began requiring
states to prove their laws were a
valid exercise of power
• Gitlow v. New York (1925): states
could not limit a person’s right to
free speech
Selective Incorporation
• Supreme Court has not made all of the
guarantees in the Bill of Rights applicable to
the states
• Defining fundamental freedoms
– Second, Third, and Seventh Amendments
– Palko v. Connecticut (1937): state not bound to
the fifth amendment
1st Amendment Freedom of Religion
• Many colonists fled Europe to
escape religious persecuting
• British parliament passed a law
establishing Anglicanism and
Roman Catholicism as official
religions in colonies 1774
• Article VI provides no religious
tests for a qualification for office
or public trust in U.S.
1st Amendment Freedom of Religion
• “Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof”
• Establishment clause
• Free Exercise clause
Establishment clause
• “Congress shall make no law respecting an
establishment of religion”
• Directs the national government not to
involve itself in religion
• Creates, in Thomas Jefferson’s words, a “wall
of separation”
• Key cases: Engle v. Vitale (1962), Lemon v.
Kurtzman(1971), Agostini v. Felton(1997),
Zelman v. Simmons-Harris (2002)
Free Exercise Clause
• “Congress shall make no law prohibiting the
free exercise of religion”
• Is NOT absolute
• Government interests can outweigh free
exercise rights
– State statutes barring the use of illegal drugs,
snake handling, and polygamy have been upheld
as constitutional
Free Exercise S.C. Cases
• Reynolds v. United States (1878)
– Free exercise clause does NOT protect Mormon’s right
to polygamy
• Employment Division of Oregon v. Smith (1990)
– Allowed Oregon to ban the use of sacramental peyote
(hallucinogenic drug) in Native American tribes’
traditional religious services.
• Church of Lukumi Babalu Aye v. Hialeah (1993)
– Members of the Santeria Church had the right to
sacrifice animals during religious services
Freedom Of Speech and Press
• “Congress shall make no law abridging the
freedom of speech or of the press”
• Not absolute bans against government regulation
• Originally considered only to protect against prior
restraint
• Congress enacted the Alien and Sedition Acts in
1798, designed to ban criticism of the
government.
• Acts expired, all convicted journalists pardoned by
Thomas Jefferson
Clear and Present Danger
• Schenck v. U.S. (1919)
• Congress can restrict speech which “creates a
clear and present danger”
– i.e. anti-war leaflets during World War I
• Direct incitement test
– Brandenburg v. Ohio (1969): government could
punish the advocacy of illegal action only if the
action is likely to incite imminent lawless action
Protected Speech
• Prior restraint
– New York Times v. U.S. (1971): Court will not tolerate
prior restraint of speech
– Pentagon Papers
• Symbolic speech
– First acknowledged in Stromberg v. California, upheld
in Tinker v. Des Moines and Texas v. Johnson
• Hate speech
– R.A.V. v. City of St. Paul: City ordinance made it a
crime to engage in speech or action likely to arouse
“anger”, overturned by S.C.
Unprotected Speech
• Libel and Slander
– New York Times v. Sullivan: “actual malice” must be
proved to support a finding of libel against a public
figure
• Fighting words
– Chaplinsky v. New York: fighting words not protected
by 1st amendment
– Cohen v. California
• Obscenity
– Roth v. U.S., Miller v. California
Free Speech Limits
• Slander—a spoken statement that is malicious, false
and defamatory. You can be held responsible in
court, especially if this affects someone’s career.
• Examples:
– A statement against a doctor (“he’s a hack.”)
– A statement about a teacher (alleging abuse).
Free Speech Limits
• Libel—a statement or picture that is
defamatory or maliciously
misrepresents someone. You can be
held responsible in court,
specifically if the statement or
picture affects someone’s career.
• The ease/difficulty in suing
someone successfully for slander
and libel is based on the
“reasonable person test.” That is,
“Would a reasonable, logical
person believe the information
after they’ve heard or read it?”
Freedom of Expression
• Obscenity
– Roth v. U.S. (1957)
– Miller v. California (1973)
• The work taken as a whole appeals to the prurient
interest
• The work portrays sexual conduct in a patently
offensive way
• The work taken as a whole lacks serious literary, artistic,
political or scientific value