Chapter 16: 1 st Amendment Freedoms MEW APG NOV 2008

1. Chapter 16: 1st Amendment FreedomsMEW APG NOV 2008 Keep these queries in mind: • Easy or hard to change the USC? (and, how is it done?) • BoRs not originally part of the USC—was it really necessary? • “rights” vs. “liberty” • Are the 1st Amendment rights “absolute?” • How are the 1st Amendment rights a NECESSITY for our democratic system?

2. PROVISIONS OF THE 1st AMENDMENT 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. civil LIBERTIES = freedom FROM GOVERNMENT…limitson what governmentcan legally do ~or~notdo (ex: freedom of expression and freedom from arbitrary arrest and prosecution) civil RIGHTS = freedoms guaranteed by the government; citizenship rights (voting, free from unjust discrimination, freedom from excessive infringement by the government) vernacular use =synonymous

4. Liberties vs. Rights: We are talking about theBILL OFLIBERTIES! • Civil liberties freedoms of all persons that are protected by the USC against gov’t. restraint—as protected by the 1st Amendment and the due process clauses of the 5th and 14th Amendments • Civil rights rights of all persons (not just citizens) to due process and equal protection of the laws ~AND~ the constitutional right to not be discriminated against (race, religion, gender, etc.)—as protected by the due process and equal protection clauses of the 5th and 14th Amendments

5. From Firstamendmentcenter.org… • The First Amendment was written because at America's inception, citizens demanded a guarantee of their basic freedoms. • Our blueprint for personal freedom and the hallmark of an open society, the First Amendment protects freedom of speech, press, religion, assembly and petition. • Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change. • When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment. • The Bill of Rights — the first 10 amendments to the Constitution — went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government. • The First Amendment ensures that "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 force citizens to confess by word or act their faith therein," as Justice Robert Jackson wrote in the 1943 case West Virginia v. Barnette. • And as Justice William Brennan wrote in New York Times v. Sullivan in 1964, the First Amendment provides that "debate on public issues ... [should be] ... uninhibited, robust, and wide-open." • However, Americans vigorously dispute the application of the First Amendment. • Most people believe in the right to free speech, but debate whether it should cover flag-burning, hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, pornography, nude dancing, solicitation and various forms of symbolic speech. Many would agree to limiting some forms of free expression. • Most people, at some level, recognize the necessity of religious liberty and toleration, but some balk when a religious tenet of a minority religion conflicts with a generally applicable law or with their own religious faith. Many Americans see the need to separate the state from the church to some extent, but decry the banning of school-sponsored prayer from public schools and the removal of the Ten Commandments from public buildings. • Further, courts wrestle daily with First Amendment controversies and constitutional clashes, as evidenced by the free-press vs. fair-trial debate and the dilemma of First Amendment liberty principles vs. the equality values of the 14th Amendment. • Such difficulties are the price of freedom of speech and religion in a tolerant, open society. Source: http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd

6. '08 survey finds most Americans would accept limits on some freedoms First Amendment Center 09.17.08 • WASHINGTON — As the nation today marks Constitution Day, sizeable numbers of Americans are unable to name their basic freedoms but would accept government limits on some of them, according to the “State of the First Amendment 2008” national survey released today by the First Amendment Center. • 39% would extend to subscription cable and satellite television the government’s current authority to regulate content on over-the-air broadcast television. • 54% would continue IRS regulations that bar religious leaders from openly endorsing political candidates from the pulpit without endangering the tax-exempt status of their organizations. • 66% say the government should be able to require television broadcasters to offer an equal allotment of time to conservative and liberal broadcasters; 62% would apply that same requirement to newspapers, which never have had content regulated by the government. • 31% would not permit musicians to sing songs with lyrics that others might find offensive. • 68% favor government restrictions on campaign contributions by private companies, and 55% favor such limits on amounts individuals can contribute to someone else’s campaign. • The survey found that just 3% of those questioned could name “petition” as one of the five freedoms in the First Amendment. Only “speech” was named by a majority of respondents, 56%. Less than 20% named religion, press or assembly.

7. Rights in the Original Constitution(i.e. W/O the BoR) • writ of habeas corpus court order directing officials who hold a person in custody to justify that confinement…though it can be abused to start a domino-effect of habeas corpus reviews, it is a remedy for illegal confinements • no bills of attainder  legislative acts inflicting punishment (such as deprivation of property) • no ex post facto laws retroactive laws • no titles of nobility “His Excellency, President Obama”…NO! • trial by jury in national courts • protection for citizens as they move from one state to another, including the right to travel • protection against using crime of treason to restrict other activities; limitation on punishment for treason • guarantee that each state has a republican form of government • no religious test oaths as a condition of holding federal office

8. ORIGINALLY (before the 14th Amendment ) the BoR applied ONLY to protecting citizens from actions by the NATIONAL GOVERNMENT—b/c the framers thought citizens could control their own state officials

9. …but the Due Process Clause of the 14th Amendment changed that! “no person shall be deprived by a state of life, liberty, or property without due process of law” • Bill of Rights now applies to the STATES • Not officially interpreted that way until 1925 in Gitlow v. New York…and started the process called: SELECTIVE INCORPORATION

10. Selective Incorporation

12. PROVISIONS OF THE 1st AMENDMENT 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.

13. 1st Amendment Museum

14. Refining these concepts a little bit… RELIGION • “separation of church and state”—not in the USC, from a letter TJ wrote in 1802 • key word = NEUTRALITY (but this not EXPLICIT in USC) • 2 parts: • Establishment Clause • Prevent 3 evils: • Government sponsorship of religion • Gov giving $ to support religion • Gov involvement in “religious matters” • Resolving conflicts between “church and state: • Lemon Test (from Lemon v. Kurtzman—secular purpose, neither advance nor inhibit, avoid “excessive entanglement”) • Endorsement test (avoid if appears to be endorsing religion) • Nonpreferentialist test (not playing favorites) • Strict separation—a more liberal doctrine • Big knot of confusion = dealing with parochial/religious schools • Free Exercise Clause • Not absolute • You CAN restrict “free exercise” • Employment Division v. Smith (1990) • You can NOT restrict “free exercise” • Church of the LukumiBabalu Aye v. City of Hialeah (1993)

15. Refining these concepts a little bit… RELIGION What about the Pledge of Allegiance, “in God we trust,” and “God save the United States and this honorable Court…? SC upheld these as constitutional because prayer had become “part of the fabric of our society” and the practice acknowledged “beliefs widely held among the people of this country” (Marsh v. Chambers, 1983)

16. Freedom of religion, YES…but there are limits: • * religious freedom does not give anyone the the right to infringe on the health, safety, welfare,or morals of other people or of society as a whole • polygamy • cannot use poisonous snakes • parents cannot deny medical treatment to children • Orthodox Jews may be compelled to observe “blue laws” • Amish must pay Social Security taxes • religious leaders may be punished for evading income taxes • religious colleges practice discriminatory behavior may be denied tax exemptions • Jewish men may not wear yarmulkes in violation of uniform regulations

17. Free Speech & Free People • FREE SPEECH IS NOT AN ABSOLUTE! • Historical Constitutional Tests • Bad Tendency Test from English common law, any speech that tends to corrupt society or cause people to engage in illegal acts = NOT PROTECTED SPEECH (abandoned b/c too broad) • Clear and Present Danger Test  from Schenck v. United States (1919), if the speech will bring about “substantive evils that Congress has a right to prevent” then NOT PROTECTED SPEECH (famous example: shouting “Fire!” in a crowded movie theatre) • Preferred Position Doctrine because freedom of expression is so essential to democracy, governments should only punish what people DO, not what they SAY Refining these concepts a little bit…

18. Congress shall make no law ... abridging the freedom of speech “[The Founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth” (Justice Brandeis) OPEN DISCOURSE = FUNDAMENTAL PRINCIPLE OF DEMOCRATIC GOVERNMENT

19. 3 Kinds of Speech pure speech = communication by the spoken word alone typically does not interfere with other persons’ rights speech-plus = speech combined with some kind of action (marching, singing, picketing, etc.) “speech” part constitutionally protected, “plus” part subject to reasonable regulations symbolic speech = actions and objects replace words in conveying ideas or emotional appeals

20. WHOA! What is THIS all about?

21. Other NON-PROTECTED SPEECH • Libel & Slander & Sedition • Libel written defamation • Slander spoken defamation • Sedition attempting to overthrow the gov by force or to interrupt its activities by violence • Obscenity • Obscenity  definition from Miller v. California (1973): • Average person would find the work appeals to a prurient interest in sex • Depicts sexual conduct in a patently offensive way • Lacks serious artistic, political, or scientific value • Fighting Words • Fighting words—sticks and stones may break your bones, and THESE WORDS will hurt you • Commerical Speech —CURRENT CASE: Refining these concepts a little bit…

22. In the news…. FCC v. Fox Television Stations versus

23. Refining these concepts a little bit… • ProtectedSpeech • Prior Restraint  censorship before content made public: military and national security and high school journalism (What a trio!  ) • Void for Vagueness if laws are too broad, usually found UNconstitutional • Least Drastic Means  cannot impinge upon 1st Amendment freedoms if another way is possible • Content and Viewpoint Neutrality laws that apply to all kinds of speech and to all views are less likely to be struck down

25. KRIS KOLDEN/DN "Nebraska Nazi" Gerhardt Lauck delivers a pro-white separatism speech on the steps of the Capitol building Saturday afternoon. Lauck has spent time in a German jail for distributing neo-nazi propaganda from his longtime Lincoln publishing business. Lincoln, Nebraska Capitol Steps July, 2003 http://www.dailynebraskan.com/vnews/display.v/ART/40fc049e202f8

26. Refining these concepts a little bit… • Freedom of the Press • Shield laws  some protection from court subpoenas for reporters • Sunshine laws  requires gov agency to hold open-to-the-public meetings • Freedom of Information Actliberalized nonclassified federal government records • What about the Internet? • Reno v. ACLU (1997): “as the most participatory form of mass speech yet developed, [the Internet] deserves the highest protection from government intrusion” • REVEALLING SOURCES—When is a reporter a “priest hearing confessions”?

27. Refining these concepts a little bit… Freedom of Assembly USC protects right to speak and to assemble, but it does not give people the right to communicate their views to everyone, in every place, at every time they wish Reasonable TIME, PLACE, & MANNER regulations:

28. 1st Amendment Quiz

29. The purpose of the First Amendment is not to protect “free thought for those who agree with us but freedom for the thoughts that we hate.”(Justice Holmes)

30. FOOD FOR THOUGHT How do the principles manifested in the First Amendment support and enhance our national motto, E PLURIBUS UNUM …the heart of pluralism…OUT OF MANY ONE?

31. “The very purpose of our Bill of Rights was to withdraw certain subjects from the vicissitudes of public controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote: they depend on the outcomes of elections.” Supreme Court Justice Robert H. Jackson