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, establishing the
incorporation doctrine
 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 and
establishment of religion
 Jefferson’s “wall of
separation”
 Believing with you that religion is a
matter which lies solely between
man and his God, that he owes
account to none other for his faith or
his worship, that the legislative
powers of government reach actions
only, and not opinions, I
contemplate with sovereign
reverence that act of the whole
American people which declared
that their legislature should “make
no law respecting an establishment
of religion, or prohibiting the free
exercise thereof,” thus building a
wall of separation between church
and state.
 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 pledge
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
 “Compulsory unification of opinion achieves only the
unanimity of the graveyard. It seems trite but necessary to
say that the First Amendment to our Constitution was
designed to avoid these ends by avoiding these
beginnings….We can have intellectual individualism and
the rich cultural diversity that we owe to exceptional minds
only at the price of occasional eccentricity and abnormal
attitudes. When they are so harmless to others or to the
State as those we deal with here, the price is not too great.
But 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.”
 Free exercise can be restricted if the
government can show an interest in
doing so such as polygamy in Reynolds v.
United States (1878)
 Religious duty does not exempt people
from following the law
 In Employment Division of Oregon v.
Smith (1990) the Court ruled against
Smith who was fired for using peyote at a
religious ceremony
 The Court said an individual’s religious
beliefs does not excuse them from an
otherwise valid law prohibiting such
activity
 In 2003 Congress passed the Religious
Freedom Restoration Act (2003)
creating a strict scrutiny test before the
government can ban such activity
 Wisconsin v. Yoder
(1972)-Amish parents
allowed to keep their
children out of school
past the 8th grade
because it violated their
free exercise rights
 Gonzales v. O Centro
Espirita Beneficiente
Unaio do Vegetal
(2006) the Court rules
that it is Ok for
members to take a
hallucinogenic tea
 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
 “It is said that this manifesto was
more than a theory, that is was an
incitement. Every idea is an
incitement.”—Gitlow was not a
threat to American society-Holmes
dissent
 Brandenburg v. Ohio
 Abrams v.US (1919)
 Holmes dissent
 Imminent action
(1969)-government can
limit speech if there is
“immediate lawless
action”
 Whitney v. California
(1927)
 Brandeis dissent
 US v. Schwimmer (1929)
 Holmes dissent (at 88)
 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
Snyder v. Phelps 2011

Issue: Does the First Amendment Freedom 
of Speech protect those wishing to protest
at a private funeral service?

8-1 Decision in favor of Westboro Baptist
Church

“Speech is powerful,” Chief Justice Roberts
wrote for the majority. “It can stir people to
action, move them to tears of both joy and
sorry, and--as it did here--inflict great
pain.” But under the First Amendment, he
continued, “we cannot react to that pain
by punishing the speaker.”

Roberts continued, “Debate on public
issues should be robust, uninhibited and
wide-open because speech on public
issues occupies the highest rung of the
hierarchy of First Amendment values.”
Justice Alito, the lone dissenter,
wrote a passionate dissent which
began, “Our profound national
commitment to free and open
debate is not a license for the
vicious verbal assault that occurred
in this case,” and, “When grave
injury is intentionally inflicted by
means of an attack like the one at
issue here, the First Amendment
should not interfere with recovery.”
 United States v. Alvarez
(2012)
 Alvarez was charged under the
federal Stolen Valor Act of 2006
which made it a crime for anyone
to falsely claim orally or in
writing to have been awarded any
military decoration, which he
had.
 Alvarez challenged the act as
violating his freedom of speech
because no one was actually
harmed by the false claims
 In a 6-3 decision, the Court
agreed the act was “overly
broad” and a threat to first
amendment freedoms.
 Justice Kennedy, who wrote
the majority decision, did
suggest one way to protect
the government and not
restrict 1st Amendment
freedoms was by creating a
public database of award
winners.
 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, and what he can’t own
 Scalia wrote for the Court:
“Undoubtedly some think the
Second Amendment is
outmoded in a society where our
standing army is the pride of our
Nation, where well-trained
police forces provide personal
security, and where gun violence
is a serious problem. That is
perhaps debatable, but what is
not debatable is that it is not the
role of this Court to pronounce
the Second Amendment extinct.
 Justice Stevens warned
that the ruling would
launch new judicial
involvement in an issue
he said should be left to
legislators. “I fear the
District’s policy choice
may well be just the first
of an unknown number
of dominoes to be
knocked off the table.”