Chapter 5 lecture notes, videos, and websites

1.  
Michelle Palaro
CJUS 2360
Fall 2015
Chapter 5
The First
Amendment

2.  “Prohibits Congress from making any laws that
restrict freedom of religion, freedom of speech,
freedom of the press, or the right to gather or
assemble peaceably and to request the
government to respond to complaints from its
citizens”

3.  The first right set forth in the Bill of Rights
 The founding fathers wanted to guarantee every
individual religious freedom
 It forbids the government constraint on people’s choices
of beliefs
o Requires that people be free to act on their beliefs
 An important legal issue is to keep church and state
separate
o To truly accomplish this is challenging

4.  “Congress shall make no law respecting
an establishment of religion”
o Cannot create a national church or
proscribed religion
 The government cannot show preference
to any particular religion

5.  Facts: Required all freshmen and sophomores to complete
6 units of military training to attain full academic standing
as a junior
 Issues: Can students be compelled to take military
courses if they object on religious grounds?
 Holding: Yes
 Rationale: States are permitted to, and have an interest
in, creating a citizenry capable of serving in the country's
military. Attendance in the University of California is a
privilege in which the students want to partake
 http://en.wikipedia.org/wiki/Hamilton_v._Regents_of_the_U
niversity_of_California

7.  Facts: A New Jersey law allowed reimbursements of money to
parents who sent their children to school on buses operated by
the public transportation system. Children who attended Catholic
schools also qualified for this transportation subsidy
 Issues: Did the New Jersey statute violate the Establishment
Clause of the First Amendment as made applicable to the states
through the Fourteenth Amendment?
 Holding: No
 Rationale: Services like bussing and police and fire protection
for parochial schools are "separate and so indisputably marked
off from the religious function" that for the state to provide them
would not violate the First Amendment

8.  Must meet three standards:
1. Have a primary secular purpose
2. Have a principle effect that neither
advances nor inhibits religion
3. Not generate excessive entanglement
between government and religion, as
set forth in Lemon v. Kurtzman
(http://en.wikipedia.org/wiki/Lemon_v._
Kurtzman)

9.  “Congress shall make no law…prohibiting the
free exercise [of religion]”
 It involves both the freedom to believe and the
freedom to act
 Courts have had to balance the requirements of
the free exercise clause against society’s legal,
social, and religious needs

10. Wooley v. Maynard,
430 U.S. 705 (1977)
 Facts: New Hampshire statutes require that noncommercial
motor vehicles bear license plates embossed with the state
motto, "Live Free or Die," and make it a misdemeanor to
obscure the motto. The appellants blackened out the motto for
moral reasons
 Issues: Can the state punish these citizens?
 Holding: No
 Rationale: Forcing an individual, as part of his daily life --
indeed, constantly while his automobile is in public view -- to be
an instrument for advocating public adherence to an ideological
point of view he finds unacceptable, invades the sphere of
intellect and spirit which it is the purpose of the First Amendment
 http://en.wikipedia.org/wiki/Wooley_v._Maynard

11.  The liberty to speak openly without fear of
government restraint
 Closely linked to the freedom of the press
because this freedom includes both the
right to speak and the right to be heard
 Commonly called the freedom of
expression

12.  Strict Scrutiny
o Legal standard applied to due process
analysis of fundamental rights
o The state must establish that it has a
compelling government interest that
justifies the law in question
o The law must be narrowly tailored to fit
that interest
o High standard and difficult to defend

13.  Symbolic speech
o A form of speech that expresses an idea or emotion
without the use of words
o Falls within the protection of the First Amendment
o Examples of symbolic speech include:
• Flag burning
• Cross Burning
• Nude Dancing
• Yard Signs

14.  Facts: Teenager arrested for burning a cross in
yard of a black family
 Issues: Is this protected speech?
 Holding: Yes
 Rationale: Supreme Court held ordinance was
unconstitutional because it prohibits permitted
speech solely on the basis of the subjects the
speech addresses
 http://en.wikipedia.org/wiki/R.A.V._v._City_of_St
._Paul

15.  Facts: Nude dancers arrested for violating state
public decency law
 Issues: Was requiring pasties and g-strings a
violation of First Amendment artistic freedom?
 Holding: No
 Rationale: The dancing did enjoy some marginal
First Amendment protection but the state’s interest
in promoting order and morality allowed it to make
a modest imposition to achieve its purpose
 http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatr
e,_Inc.

16.  Constitutional rights are NOT absolute
 There are reasonable limits, when the government has
a legitimate interest, which are placed on where and
when things can be said and on what can be said
o Mostly occur in time of war or national emergency
 Espionage Act 1917 - Made illegal interference with
recruiting or drafting soldiers or any act that adversely
affected military moral
 Schenck v. United States (1919)
o Was charged with espionage for distributing flyers that
encouraged young men to resist the draft
o This is an example when the good of the greater whole
outweighs the rights of the individual

18.  Facts: The Defendant was convicted under the
California Penal Code for mailing advertisements for
“adult” material to non-soliciting recipients
 Issues: Can state statutes may regulate obscene
material without limit?
 Holding: No
 Rationale: Court clarified thee standards to define
obscenity by establishing a 3 part test:
o Whether the average person, applying contemporary
community standards, the dominant theme of the material,
taken as a whole, appeals to prurient interest, that is, having a
tendency to excite lustful thoughts

19.  Clear and probable danger test - Whether the gravity of the
evil discounted by its improbability justifies an invasion of free
speech necessary to avoid any danger
 Brandenburg v. Ohio (1969)
o The court adopted a new test that replaced the “clear and present
danger test”
o Imminent lawless action test - 3 part test the government must
meet if certain communication is not protected under 1st
Amendment
1. Speaker subjectively intended incitement
2. The words used were likely to produce imminent lawless action
3. Words used by the speaker objectively encouraged and urged
incitement

20.  Constitutional rights can be applied
differently based on one’s profession
o As public employees, law enforcement
officers’ speech is protected under the
First Amendment only if it is:
1) Matter of public concern
2) Unrelated to employment

21.  Related to freedom of speech because speech
is not only considered spoken words, but any
means of conveying information
 Right to publish is not absolute
 Government has restricted the right to publish
in 2 ways:
1. Publishing certain materials (prior restraint)
2. Punishing those who publish matter considered
seditious, libelous or obscene

22.  Prisoners are using this “due process revolution” to
have the courts rule on First Amendment issues related
to correctional clients
 The courts have used the Rational Basis test to uphold
prison regulations that are “reasonably related to
legitimate penological interests”
 Issues where the courts have ruled include:
o Censorship of mail
o Expression within the institution
o Association within the institution
o Religion
o Appearance
o Visitation rights