The document discusses the key freedoms protected by the First Amendment: freedom of religion, freedom of speech, freedom of the press, and the rights to peacefully assemble and petition the government. It provides examples of Supreme Court cases that have shaped the interpretation of these rights over time and describes how the government can reasonably regulate speech in some circumstances like times of war. The rights of prisoners and public employees to free expression are also addressed at a high level.

1. THE FIRST
AMENDMENT: BASIC
FREEDOMS
Chapter 6

2. Introduction

You know more constitutional law than you
think you do!

Thanks to the media, they are able to present
information about the law that the general public
can develop a sense of the basics

3. 1st Amendment

“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”

4. Freedom of Religion



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


Requires that people be free to act on their beliefs
An important legal issue is to keep church and
state separate

To truly accomplish this is challenging

5. Freedom of Religion

Establishment Clause

Free Exercise Clause

6. Establishment Clause

“Congress shall make no law respecting
an establishment of religion”


Cannot create a national church or proscribed
religion
The government cannot show preference
to any particular religion

7. Establishment Clause

Ha m ilto n v. Re g e nts o f the Unive rs ity o f
Ca lifo rnia (1934)



Required all freshmen and sophomores to
complete 6 units of military training to attain full
academic standing as a junior
Taking these courses did not obligate the
students to serve in or in any way become a part
of the U.S. military establishment
No constitutional violation in making students take
these military courses

8. Establishment Clause


Eve rs o n v. Bo a rd o f Ed uc a tio n- separation of
church and state (1947)
Supreme Courts ruling:

Allowing reimbursements to parents for the
transportation of their children to parochial
schools on the public bus system did not
constitute an establishment of religion

9. Establishment Clause

Eng le v. Vita le (1962) - school prayer

Courts ruling:
 Voluntary
or otherwise conducted in public school
classrooms, was unconstitutional

Wa lla c e v. Je ffrie s (1985) – moment of
silence

Courts ruling:
 Moment
of silence for mediation or voluntary prayer
to be used to encourage religious values, was
unconstitutional

10. How to challenge the
Establishment Clause?

Must meet three standards
1.
2.
3.
Have a primary secular purpose
Have a principle effect that neither advances
nor inhibits religion and
Not generate excessive entanglement between
government and religion, as set forth in Lemon
v. Kurtzman

11. Establishment Clause



1980- Court struck down a Kentucky law
requiring the posting of the 10 Commandments
in all classrooms
1984- “Equal Access” law gave students the
right to hold religious meetings in public high
schools outside class hours
2003- Alabama Supreme Court Justice, Roy
Moore, refused to remove a statute of the 10
Commandments from the judicial building. He
refused and was eventually removed from his
position

12. Free Exercise Clause


“Congress shall make no law…prohibiting
the free exercise [of religion]”
It involves both the freedom to believe
and the freedom to act

13. Free Exercise Clause

Ca ntwe ll v. Co nne c tic ut (1940)


Religious beliefs cannot be regulated by
government and delineated how beliefs and acts
differ
Courts have had to balance the requirements
of the free exercise clause against society’s
legal, social, and religious needs.

St. Paul, MN


Ordinance prohibiting people from hiding their identity “by
means of a robe, mask or other disguise”
Muslim woman got ticket for wearing a veil

The court ruled that the ordinance was unconstitutional

14. Free Exercise Clause

More examples:


Autopsies- affected some religious practices
We s t Virg inia Sta te Bo a rd o f Ed uc a tio n v .
Ba rne tte (1943)
 States
could not require kids to pledge allegiance
each school day

Wo o le y v. M y na rd (1977)
a
 State
could not punish someone for blacking out their
license plate’s state motto where it says “Live Free or
Die”

15. Free Exercise Clause

To balance this assertion, in the Wooley
case, the court held that printing “In God We
Trust” on money did not violate the
Constitution


Money is passed among people, therefore, it
does not indicate that a particular individual
agrees with a religious or government belief, but
a motto on a license plate would
Also, money is transported in such a manner as
not to be a public display

16. Free Exercise Clause

Dec. 1993-Supreme ruled that the Boy Scouts
could require applicants to promise to “love Gd” and to “do my duty to G-d and my country”

1990- Mark Welsh was denied membership in the
Tiger Cub Group because he refused to sign the
required pledge
 Court
said that this was not a violation of the 1 st
Amendment

17. Free
Exercise
Clause
Conduct not
protected by
the freedom
of religion
clause

18. Interpretations

Some argue that the courts need to discover
the original intent of the Constitution and the
amendments


There should be no deviation
Some believe that judges should be allowed to
interpret the Constitution and its amendments


Judicial activism- allows judges to interpret the
Constitution and its Amends.
Should be able to apply the ideals of the founding
fathers to more current times

19. Freedom of Speech



Is 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

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

21. Restrictions on Freedom of Speech


Constitutional rights are NOT absolute
There are reasonable limits, when the
government has a legitimate interest, are
placed on where things can be said and, on
what can be said

Mostly occur in time of war

22. Restrictions on Freedom of Speech


Espionage Act 1917- made illegal interference
with recruiting or drafting soldiers or any act
that adversely affected military moral
Sc he nc k v . Unite d Sta te s (1919)


Was charged with espionage for distributing flyers
that encouraged young men to resist the draft
This is an example when the good of the greater
whole outweighs the rights of the individual

23. Restrictions on Freedom of Speech

Clear and present danger test- whether words
are so potentially dangerous as to not be
protected by the 1st Amendment


Yelling “fire” in a crowed theater
1940 Smith Act Declared
advocating the overthrow of the government
by force or violence to be unlawful

24. Restrictions on Freedom of Speech


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
Bra nd e nburg v. O hio (1969)


The court adopted a new test that replaced the “clear and
present danger test”
Imminent lawless action test- 3 part test the government must
meet if certain communication is not protected under 1 st
Amendment
1.
2.
3.
Speaker subjectively intended incitement
The words used were likely to produce imminent lawless action
Words used by the speaker objectively encouraged and urged
incitement

25. Restrictions on Freedom of Speech


Balancing test- position taken by the appellate
courts to balance the needs of society for law
and order and for effective law enforcement
against the privacy rights of individuals
Preferred freedoms approach – a position that
stresses that civil liberties are to take
precedence over other constitutional values
because they are requisite to a democracy

26. First Expression Rights of
Public Employees

Constitutional rights can be applied differently
based on one’s profession

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

27. Symbolic Expression

Symbolic speech is



A form of speech that expresses an idea or
emotion without the use of words
Fall within the protection of the First Amendment
Examples of symbolic speech include
 Flag
burning
 Cross Burning
 Nude Dancing
 Yard Signs

28. Flag Burning


1969 Stre e t v. N w Yo rk- a flag was burned in
e
protest and was arrested for malicious
mischief. In NY, the law made acting out
verbally or symbolically a crime
1989 Te x a s v. Jo hns o n

Set American Flag on fire
 Supreme
Court said not guilty under 1st Amendment

29. Flag Burning


1989 Congress pass a flag protection act
1990 declared it unconstitutional as an
unwarranted restriction on symbolic
expression

30. Cross Burning

St. Paul, MN
 Teenager arrested for burning a cross in yard of a
black family
 County district judge said ordinance was
unconstitutional
 State supreme court reversed decision
 Supreme Court held ordinance was unconstitutional
because it prohibits permitted speech solely on the
basis of the subjects the speech addresses.

Cross burning is deemed a protected form of speech

31. Nude Dancing



In 1991 the Supreme Court took up the
question of nude dancing as a form of
symbolic speech
An Indiana law requiring dancers to wear
pasties and a g-string did not violate the
dancers freedom of speech
There can be restrictions of totally nude
entertainment

32. Yard Signs

1994- Supreme Court ruled that cities may not
prohibit residents from putting political or
personal signs in their yards

33. Freedom of Speech and the
Internet



In 1997 the Supreme Court struck down a law
banning computer generated child
pornography
Currently Congress is considering legislation
to address the problem of Internet spam
In another case the Court held that Congress
can limit funding to libraries that did not filter
Internet access to block obscene material and
child pornography without violating the First
Amendment

34. The Right to Photograph


As a result of terrorist activities law
enforcement agencies have become vigilant
against those people who are taking pictures
of government properties
Videotaping law enforcement officers in the
line of duty


Prosecutors across the country claim that
videotaping police officers violates wiretap laws
No cases look at by the Supreme Court yet

35. Freedom of the Press



Is related to freedom of speech because
speech is not considered only 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.
2.
Publishing certain materials (prior restraint)
Punishing those who publish matter considered
seditious, libelous or obscene

36. Freedom of the Press

N a r v. M
e
inne s o ta (1931)


ruled that no newspaper could be banned
because of its contents, regardless of how
scandalous they might be
M r v. Ca lifo rnia (1941)
ille

court clarified thee standards to define obscenity
by establishing a 3 part test:
 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

37. Freedom of the Press

Restrictions of the press often occur during
national emergencies




WWI- led to first clear articulation of the limits to
freedom of speech
WWII- press was curtailed for security reasons
In 1971, the government attempted to stop the
publication of the Pe nta g o n Pa p e rs saying that it
could endanger national security
Other than wartime, censorship for national
security reasons has been carefully limited

38. Balancing Freedom of the Press
with the Right to Fair Trial



A free press, vital to the functioning of a
democracy, keeps citizens fully informed and
able to discharge their civic responsibilities
Defendants in criminal cases are guaranteed
due process of law and a fair and impartial trial
These guarantees are jeopardized when the
media publish detailed information before a
defendant is tried.

39. Balancing Freedom of the Press
with the Right to Fair Trial



The court has a duty to protect those who come
before it from undue adverse publicity
Failure to do so may result in a higher court
declaring that the trial was unfair and overturning
the conviction
The Media and Coverage on Criminal Investigations
 At times reporters’ First Amendment rights of
freedom of the press can come into conflict with
law enforcement’s responsibility to investigate
crimes without violating a suspect’s Sixth
Amendment right to a fair trial.

40. Right to Peaceful Assembly



People do have an expectation they can gather to
interact, speak among themselves and make their
thoughts and ideas known
The right to assemble does not necessarily require
an intent to engage in some specific activity,
although when it does, the activity cannot be illegal
The right to peaceful assembly was made
applicable to the states via incorporation in
DeJonge v. Oregon (1937)

41. Freedom of Association

Freedom of association was extended to
the states in N A v. A ba m a (1958)
A CP
la

42. First Amendment Rights of
Prisoners



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 involve:

censorship of mail, expression within the
institution, association within the institution,