First Amendment: Intro and Overview

First Amendment: Intro and Overview David L. Hudson Jr. Freedom Forum Institute

Text – Freedoms • “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.

Five Freedoms • Freedom of Religion – Establishment Clause and Free Exercise Clauses • Freedom of Speech • Freedom of Press • Freedom of Assembly • Freedom of Petition

Areopagitica “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” John Milton (1644)

Marketplace of Ideas Metaphor • “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct that the best test of truth is the power of the thought to get itself accepted into the competition of the market.” • - Justice Oliver Wendell Holmes (1927)

Counterspeech Doctrine • “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” • - Justice Louis Brandeis

Liberty Theory or Self-fulfillment • Based on language from the Declaration of Independence: “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Safety Valve Theory • “that it is hazardous to discourage thought, hope and imagination; that fear breads repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supported grievances and proposed remedies.” • - Justice Louis Brandeis (1927)

“Congress shall make no law …” • Applies to more than Congress; applies to all governmental officials (federal, state and local) … state and local through the Fourteenth Amendment … incorporation … Gitlow in 1925 • “no law” doesn’t really mean no law …

First Amendment doesn’t protect everything • Perjury, blackmail, extortion, true threats, fighting words, obscenity, child pornography, incitement to imminent lawless action … these are all types of speech that the First Amendment does NOT protect. Another example is false advertising.

Shouting Fire • “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” J. Oliver Wendell Holmes

Not All Speech Protected • “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words.” • - Justice Frank Murphy (1942)

Symbolic Speech – Expressive Conduct • “In a long line of cases, this Court has afforded First Amendment protection to expressive conduct that qualifies as symbolic speech.” • - Justice Thurgood Marshall (1984) • Thus, the First Amendment applies to more than just verbal speech or the printed word. (display of red flag, black armbands, etc.)

Not Everything is Speech • “It is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” • Chief Justice William Rehnquist (1989)

Is Expressive Conduct Speech? • (1) Was there an intent to convey a particularized message? • (2) Was it a message that would reasonably be understood?

Categorization • Certain categories of speech do not merit First Amendment protection. Determine if speech falls into one of these categories. Some are: • Obscenity, child pornography, fighting words, incitement of imminent lawless action, blackmail, libel and true threats.

Not All Speech Treated the Same • Political speech – most protected • “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.” (Robert Bork, 1971) • Commercial speech – less protection; until mid 1970’s, no protection • Sexual speech – less protection

Content discrimination • Perhaps the most pervasive tool of First Amendment law is determining whether a law is content-based or content-neutral. • Content-based: subject to strict scrutiny • Content-neutral: subject to intermediate scrutiny

Content Discrimination • “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” {MISC quote} • - Justice Thurgood Marshall (1972)

Content Discrimination – Rarely Constitutional • “It is rare that a regulation restricting speech because of its content will ever be permissible.” - Justice Anthony Kennedy (2000)

Content-based laws • Example of content-based laws: • A law that makes it a crime to insult a police officer. • A law that prohibits movies that contain any nudity. • A law that prohibits literary works by ex-felons that discuss their past crimes.

Content-neutral laws • Examples: • A law that prohibits all demonstrators after 5:00 p.m. • A law that bans anyone from sleeping on federal memorial grounds. • A law that bans distribution of any materials in public park.

Viewpoint discrimination • Egregious type of content discrimination • State university denies funding for Christian publication but allows funding for Islamic publication. • Park official allows Democratic speech in park, but not Republican speech.

Even Worse - Viewpoint Discrimination • “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination.” • - Justice Anthony Kennedy

Even Offensive Ideas Protected • "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 (1989)

Overbreadth doctrine • “A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” • - NAACP v. Alabama (1958)

Example of Overbreadth • Son of Sam law – named after David Berkowitz who called himself the Son of Sam (his neighbor’s dog spoke to him through a spirit named Sam) • NY passes law providing that criminals not profit on expressive materials that describe their crimes (problem – law was overbroad and could apply to any work in which author discusses a crime -- i.e. Confessions of St. Augustine, Autobiography of Malcolm X, Civil Disobedience by Henry David Thoreau)

Vagueness • A law is vague if persons of “common intelligence must necessarily guess at its meaning and differ as to its application.” • Rooted in due process (notice of what is criminal conduct and what is not) • Example: 1996 federal law that banned “patently offensive” and “indecent” communications over the Internet --- problem: law did not define what is indecent – could discussions about birth control, prison rape, etc. be indecent??

Prior Restraints – Presumptively Unconstitutional • “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” • - Chief Justice Warren Burger (1976)

Black on the Establishment Clause • “the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.” • “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”

Another View – the Rehnquist View • “designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.” • - William Rehnquist

Rehnquist View (cont.) • “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.” • - Justice (now Chief Justice) William Rehnquist (1985)

Free Exercise Clause • Freedom to belief and freedom to act – • Clause embraces two concepts, - freedom to believe and freedom to act. Court has said that the “first is absolute but, in the nature of things, the second cannot be.”

Free Exercise Clause • The government cannot force one to practice a certain religious faith or to infringe on your ability to practice your religious beliefs. • But what if those practices impact public health and safety or infringe on the rights of others?

Polygamy case – Reynolds v. U.S. (1878) • "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

First Amendment: Intro and Overview