First Amendment Rights

1. First Amendment Rights

2. The Unalienable Rights and Civil Liberties • When our nation was founded, we established it based on the ideas of The Enlightenment; specifically that people have rights that cannot be taken away. • When the Constitution was created, many were upset that these basic rights were not listed. • To appease them, the Bill of Rights was created. • Civil Liberties are protections against our government that all citizens have. • Civil Rights are the acts that the government takes to protect and guarantee our civil liberties. • The First Amendment reads: 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.

3. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.—Oliver Wendell Holmes, Jr. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. –Oliver Wendell Holmes, Jr. Relative Rights, Not Absolute Rights • While these rights are granted, they are not absolute. They can be restricted. • First Amendment freedoms can be denied if they infringe upon the rights of someone else. • The Federal Government can restrict and regulate what it considers obscene and indecent on the television, radio, and regulate annoying spam on email. • Freedom of the Press can infringe on someone’s fair trial. • In a time of crises (Civil War, WWII, 9-11) rights can be taken away (Habeas Corpus, Japanese Internment, Patriot Act) to protect the nation as a whole.

4. Federalism and Individual Rights • The Bill of Rights only places restrictions on the National Government. The states don’t necessarily have to follow( For example, the federal government has to use a grand jury for a capital crime but a state can choose to do it or not). • Many Supreme Court cases use the 14th Amendment to guarantee the freedoms established by the 1st Amendment. • The 9th Amendment has also been used to retain the rights of the people. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. –14th Amendment Section I

5. Question Time • 1. What does it mean relative and not absolute rights? • 2. What 5 things are guaranteed by the First Amendment? • 3. What other amendment has been used to back up the freedoms in the First Amendment?

6. Freedom of Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… • Many colonists came to America early on for religious freedoms that they could not enjoy in America. • Here, you could be protected from abuse if you were a Catholic or Protestant back in Europe. • The ideas of freedom of religion also come from the Enlightenment from Voltaire who saw the effects of religious intolerance in France.

7. 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 & State.—Thomas Jefferson Freedom of Religion • The balance of the “Establishment Clause” and “Free Exercise Clause” has been an eternal argument here in the US. • The concept of “separation of church and state” has led to many court cases and legal battles. • The boundary between allowing and supporting a religion is a big battleground even today. • The government grants all religions tax exempt status. • Chaplains of all faiths are represented in the military. • There are references to God in coins, the national anthem, and in many oaths of office taken.

8. Freedom of Religion • Most cases dealing with the Establishment Clause deals with religion and public schools. • Engel vs Vitale outlawed the use of payer in school. • Abington School District vsSchmepp forbade a school district to read from the Bible every morning. • Stone vs Graham declared a Kentucky law unconstitutional that mandated that all public school classrooms hang up the 10 Commandments. • Wallace vsJaffreefound mandatory moments of silence to be unconstitutional. • Lee vs Weisman forbade prayers at public school graduations. • Santa Fe Independent School District vs Doe ruled against a student led prayer service before high school football games. • Basically, public schools cannot sponsor religious events or practices but cannot forbid students to pray or read as they see fit.

9. Freedom of Religion • Despite these limitations, student lead faith groups can have a club of their own if they choose as long as the school sets up other organizations too. • These clubs must receive the same funding and support as other organizations. • Other educational issues go back to the theory of evolution. • State must also give some aid to parochial schools for food costs, transportation, standardized tests, equipment, and books.

10. Freedom of Religion • To determine if religion has crossed a line in a school, the Supreme Court uses the “Lemon Test.” • The Lemon Test determines: 1. The purpose of the aid must be secular and not religious, 2. It’s primary effect must neither advance or inhibit religion, 3., It must avoid excessive entanglement of government in religion. • In court cases, it has been determined that public funds cannot be given to teachers’ salaries, funds cannot be given for anti-abortion campaigns, parents cannot be reimbursed for sending their kid to a private school, but states can give vouchers to people who want to enroll their kid in a private school.

11. Freedom of Religion • There are other Establishment Clause issues that don’t deal with education. • The ACLU has often fought against public nativity scenes that are put up by the city or a city agency. • Even though Congress open each session with a prayer, the Supreme Court has ruled that this doesn’t violate the First Amendment. • Many courts across the country have the 10 Commandments posted, but many have been taken down.

12. Freedom of Religion • The Free Exercise Clause has not been challenged as much as the Establishment Clause. • The Supreme Court has upheld laws forbidding Mormon polygamy, requiring child vaccinations, using poisonous snakes in rituals, requiring religious groups to apply for a permit for parades, people being fired for using drugs as part of a “ceremony”, and Sunday “Blue laws”. • Likewise the Supreme Court has upheld many religious practices like: allowing Amish kids to attend school only up to 8th grade, states cannot forbid ministers from running for public office, allowed animal sacrifice, and Jehovah’s Witnesses can be allowed to not salute the flag.

13. Question Time • 4. Why did the Founding Fathers want to separate the laws of our land from religious traditions? • 5. What are the two parts of the “freedom of religion” part of the First Amendment? • 6. What sort of court cases have been brought up regarding freedom of religion?

14. The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. –Thomas Jefferson Freedom of Speech and Press • Congress shall make no law…or abridging the freedom of speech, or of the press… • Under the First Amendment (and backed up by the 14th) we can say just about anything we want. • However, this right isn’t totally absolute. There are limits to what we can say and print in a newspaper. • Libel is putting something in a newspaper that is false, misleading, and done with the intent to harm someone or their reputation. • Slander is like libel, but it is done with the spoken word. • Both libel and slander, while not crimes, can be sued for. • False advertising, printing and distribution of obscene materials, and inciting a riot or crime are also prohibited.

15. Freedom of Speech and Press • Sedition, the attempt to overthrow the government by force, is unlawful. Therefore, seditious speech is also not allowed. • In 1798, Congress and John Adams passed the Alien and Sedition Act which made it ok to deport immigrants if they made any “seditious, scandalous, false, or malicious” comments about the government. • While probably unconstitutional, the act expired under Jefferson and never renewed so it was never challenged. • The Sedition Act of 1917 made it a crime to commit disloyal acts against the US during WWI, including disrupting the draft. • Schenckvs US, said that during war, freedom of speech can be limited and the Sedition Act was constitutional. • Smith Act of 1940 makes it illegal to plan to overthrow the US government. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.—Oliver Wendell Holmes, Jr.

16. Freedom of Speech and Press • Another big issue is that of obscenity. • What constitutes obscenity and who decides it? • Much of the issue can be regulate by the interstate commerce clause that Congress has. • Obscene materials cannot be sent across state laws by the US Post Office. • While cities and towns cannot ban “adult establishments”, they can zone them and restrict where they can be. • Libraries that receive federal funds must have filters to block adult sites. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.—Potter Stewart.

17. Freedom of Speech and Press • While the government can punish people after things have been said/printed, it is hard to do it before hand. This is called prior restraint. • Prior restraint can only be used in extreme cases as in stirring people into a riot/revolt or wartime. • Because of this, even hate filled speech against minorities can be allowed and has constitutional protection. • The Pentagon Papers is a classic case of a paper (the NY Times) printing leaked documents about the Vietnam War. • The government could not prove that this would endanger the nation’s security. • However, the Supreme Court has since ruled that the CIA can force agents to never publish anything without their agreement first, political material cannot be distributed on military bases without permission, teachers can exercise editorial control over what students write and say, public schools can sensor newspapers, plays, and books, and prisons can ban material that could be detrimental to the prison community as a whole.

18. Freedom of Speech and Press • The media also has a responsibility in freedom of speech and press. • The issue of what can be regulated and printed has long been a big issue. • Journalists refuse to testify in court to protect sources and some have gone to jail over this. As a report, some states have passed “shield laws” to protect reports from divulging their sources. • From 1915 to 1952, towns could ban movies as being “indecent”. Today, most people go by movie ratings. • Radio and TV come under more scrutiny because radio waves are considered a “resource” and go over state lines. • The FCC regulates what can be shown on cable and local stations. • While the FCC cannot ban what ha yet to be broadcast, it can give out harsh fines and revoke station licenses.

19. Freedom of Speech and Press • Picketing on strike also can be touchy. • Picketing is ok if you are there to talk about your side of the argument. • Picketing is a problem if you try to prevent people from working or entering a place of business or if it turns violent. • Symbolic speech can be protected, but the Supreme Court has spoken out against people burning draft cards, burning crosses in order to intimidate, and allowing campaign contributions. • However, the Supreme Court does allow flag burning as an act of protest and cross burning as an act of political expression.

20. Freedom of Speech and Press • Congress even can regulate commercial ads. • Since 1975, cigarette ads cannot be found on TV or radio. • In 1986, chewing tobacco ads were also banned. • Ads for hard liquors and adult services have also been prohibited or regulated. • The government can prohibit ads that are false and misleading. • However, the Supreme Court has declared some laws to be unconstitutional that prohibited ads for abortion services and prices for prescription drugs and alcohol.

21. Question Time • 7. What is the difference between libel and slander? • 8. Why is it a good thing that our nation protects the First Amendment rights of hate groups as well as everybody else? • 9. In what ways can Congress limit freedom of speech? • 10. What is the “Clear and Present Danger” interpretation of the First Amendment?

22. Freedom of Assembly and Petition • Congress shall make no law … abridging…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. • The Constitution allows for people to gather and speak and protest whatever they like. • This allows all different viewpoints to be spread and heard as well as allows our government to hear to concerns of the people they represent. • However, the key word is “peaceably”. Inciting people to riot or violence is another issue. • You also cannot block access to a public building, business, roads , etc.

23. Freedom of Assembly and Petition • Civil Disobedience is not a constitutional right, but has caused a lot of changes here. • The government can make regulations for assembly. • The Supreme Court has upheld rules about noise violations, loitering laws, and permits for parades/demonstrations. • In many cases, for you to do a demonstration on public property (park, street, public building, etc.) you need to have a permit to do so.National Socialist Party of America vs Village of Skokie

24. Freedom of Assembly and Petition • Private property demonstrations have also come up in the Supreme Court. • Basically, you cannot trespass on private property. You have to have permission to protest there. • You also have the right to associate with any group you wish to. • You cannot be fired because of your political/religious beliefs. • Private groups that you join, however, can choose who they wish to admit. Boy Scouts of America v Dale and Welsh v. Boy Scouts of America .

25. Question Time • 11. When you protest, what things can you not do? • 12.What rights do you have, in regards to social and private organizations? • 13. What rights do private and social organizations have?