Chapter 6

1. Chapter 6 The First Amendment- Our Basic Freedoms

2. Establishment Clause • 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. Freedom of Religion • Freedom to worship, to print instructional material, to train teachers and to organize groups for their employment and schools in which to teach, including religion, but also to not force a religion on people. • To truly separate church and state is challenging. In fact, it cannot be done totally. Churches must conform to building and fire codes. Certain behaviors are not accepted anywhere, including churches.

4. Freedom of Religion Hamilton v. Regents of the University of California (1934) • The university required all freshmen and sophomores to complete six units of military training to attain full academic standing as a junior. • The students petitioned the university regents to make the military training courses optional or to exempt them as conscientious objectors. • The students, adhering to their convictions, declined to take the prescribed courses and were suspended.

5. Freedom of Religion Everson v. Board of Education (1947) • The Supreme Court held that a state statute allowing reimbursement to parents for money spent to transport their children to parochial schools on the public bus system did not constitute an establishment of religion. • The Court held that disallowing parents of parochial school students a reimbursement allowed to other parents effectively constituted denial of welfare benefits on the basis of religious faith.

6. Freedom of Religion Engle v. Vitale (1962) • Public school students were allowed to observe a period of silence in which to pray if they wished, but the schools could not conduct devotional exercises, compose prayers, read the Bible or enter the field of religious instruction.

7. Freedom of Religion Stone v. Graham (1980) • The Court struck down a Kentucky law requiring the posting of the Ten Commandments in all classrooms. • The “Equal Access” law of 1984 gave students the right to hold religious meetings in public high schools outside of class hours.

8. Freedom of Religion Wallace v. Jeffries (1985) • The Court reversed its position on the Engle decision. It ruled that permitting even a “moment of silence” for “meditation or voluntary prayer” in public schools was unconstitutional. • The Court held that authorizing such a silence period had as a purpose to promote religious values and violated the First Amendment’s establishment clause.

9. Is Speech Involved? The First Amendment concept of speech includes the right to: • Receive information • Hold beliefs • Communicate them to others • Engage in ideological silence • Engage in symbolic speech Speech also includes the freedom not to speak or, to remain silent.

10. The Distinction Between a Speaker’s Message and Conduct United States v. O’Brien The Court held that laws prohibiting conduct may be applied to persons engaged in speech if they further a substantial government interest that is unrelated to suppressing the message that accompanies the conduct.

11. The Distinction Between a Speaker’s Message and Conduct People who engage in conduct while expressing their beliefs are not exempt from complying with laws designed to protect the health, safety, and welfare of the community. Angrily shaking a fist in another person’s face is an assault even though this gesture is accompanied by words that are fully protected by the First Amendment.

12. The Distinction Between a Speaker’s Message and Conduct Expressive Conduct • communicates a message like marching, picketing, or engaging in symbolic speech.

13. Freedom of Speech Clear and Present Danger Test • A test of whether dangerous words should be protected by the First Amendment. • Gitlow v. New York (1925) • The Court held that “a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, and incite to crime, or disturbing the public peace.”

14. Freedom of Speech Clear and Probable Danger Test • A test of whether the gravity of evil justifies the invasion of free speech. Imminent Lawless Action Test • A three-part test to determine whether certain communication is not protected by the First Amendment.

15. Freedom of Speech Preferred Freedoms Approach • Civil liberties take precedence over other constitutional values. • A position originally set forth by Justice Harlan F. Stone, has been important in constitutional law since World War II. • Konigsberg v. State Bar of California (1961)

16. Freedom of Speech • The difficulty of the absolute approach to free speech was shown in 1978 when a group of American Nazis sought to hold a rally in Skokie, IL. • The importance of freedom of speech was highlighted during the Free Speech Movement of student protesters in the 1960s and 1970s. Forty years ago the University of California, Berkeley, banned political activity on campus.

17. Freedom of Speech Rosenberger v. Rector and Visitors of the University of Virginia (1995) • The University of Virginia, a state school, had a policy of using money from the Student Activity Fund (SAF), from mandatory student fees, to pay outside vendors to cover printing costs for a variety of publications produced by student organizations. • The university denied authorization for payment of printing costs for “Wide Awake,” a newspaper put out by a Christian student group, claiming it would implicate the school in the promotion of a religion.

18. Freedom of Speech Symbolic acts are included within the protection of the First Amendment. • Flag burning • Cross burning • Nude dancing • Yard signs • Freedom of speech and cyberspace • Expression rights of off-duty police officers

19. Punishing Speech Because of the Message A small number of speech topics, have been excluded from the realm of protected speech. These are: • Obscenity and Child Pornography • Fighting words • Threats • Incitement to riot • Defamation (libel and slander) • Loud speech and loud noise

20. Obscenity and Child Pornography In 1957, the Supreme Court ruled that obscenity lacks First Amendment protection and then struggled for the next 15 years to agree on a constitutional definition. What is obscene?

21. Obscenity and Child Pornography Miller v. California Constitutional test for Obscenity is: • Appeal to prurient interests • Depict hard-core sexual acts in a patently offensive way • Acts to be previously defined by state law • Lack serious literary, artistic, political, scientific, or other value

22. The rules for obscenity searches and seizures differ from the general procedures in four ways: • Preliminary determination from a magistrate that there is probable cause to believe that a particular work is obscene before they may seize it. Must have search warrant. • Higher degree of specificity is needed in the affidavit for an obscenity search warrant. • Requirement that search warrants particularly describe the things to be seized. • Police officers may not seize all copies of items described in their search warrant.

23. Fighting Words • Chaplinsky v. New Hampshire, 315 US 568 (1942) • Chaplinsky was in a face to face confrontation with the city marshal • “A God damned racketeer” • “A damned Fascist”

24. Fighting Words People may not be arrested for using fighting words unless the following elements are both present. • Words used are derogatory, abusive, or insulting. • They are addressed to another person in a face-to-face encounter under circumstances that are inherently likely to provoke the other into making an immediate violent response.

25. Threats • Watts v. United States, 394 US 705 (1969) • Watts made a speech at an anti-war rally • “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle, the first man to get in my sights is L.B.J. They are not going to make me kill my black brothers.

26. Threats No protection from the First Amendment. Before a person can be punished for making a threat, a threat must in fact have been made. Courts have upheld the constitutionality of telephone harassment statutes making it a crime to threaten others over the phone, even though the threats are incapable of being acted upon at that particular moment.

27. Incitement to Riot • Schenck v. United States, 249 US 47 (1919) • Socialist party mailing • Schenck mailed circulars urging men who were called to the draft to resist and ignore the notice to report. • “The clear and present danger test”

28. Incitement to Riot • Clear and danger proved to malleable • Justice Brandies had argued in the dissent that the test was dangerous in itself. • He argued that the test should apply only when the danger is inherent.

29. Brandenburg v. Ohio • “KKK Rally – “If our President, our Congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) taken” • “the nigger should be returned to Africa, the Jew to Israel”

30. Brandenburg v. Ohio • Brandenburg was convicted of advocating “the duty, necessity, or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing political reform”

31. Brandenburg v. Ohio • The first amendment protects the advocacy of violence unless the advocacy is • “both directed toward inciting or producing imminent lawless action , • and is likely to incite or produce such action”

32. Incitement to Riot Speech advocating violence loses First Amendment protection only when it is: • Directed toward inciting imminent lawless action • An outbreak seems imminent

33. Incitement to Riot • Hess v. Indiana • “We’ll take the f---ing street later! • Conviction was overturned because: • Not directed a specific group of people. • Even if it was directed a specific group of people the action urged was to occur later at some indefinite time.

34. Hate Speech Hate speech refers to speech that ridicules, degrades, or expresses loathing for others because of race, creed, color, religion, gender, sexual orientation, disability, or other distinguishing characteristics. Hate speech is protected by the First Amendment only if it remains an expressed belief. But there is no protection on hate conduct.

35. Crude and Vulgar Speech The Supreme Court upheld the authority of school officials to discipline students for using vulgar language.

36. Commercial Speech • Commercial Speech – designed to create interest in a commercial transaction. This carries only intermediate protection. Includes protect consumers from misleading, deceptive, or overly aggressive advertising, and prevent attorneys from being overly aggressive in soliciting accident victims.

37. Free Speech Access to Government Property: Public Forums and Nonpublic Forums Public forums receive special protection under the First Amendment. Status as a public forum can be acquired in one of two ways: • Through historic use • By designation

38. Forums Traditional Public Forums – public streets, sidewalks, and parks have a long history of use by members of the public to hold assemblies, distribute literature, and discuss public affairs. Public Forums by Designation – governments deliberate decision to set a particular facility aside for speech uses by members of public.

39. Free Speech Access to Government Property: Public Forums and Nonpublic Forums Restrictions on speech access to nonpublic forums must satisfy two relatively lax requirements. They must be: • Reasonable • Neutral with respect to viewpoint

40. Free Speech Access to Government Property: Public Forums and Nonpublic Forums Restrictions on speech access to public forums are tested by a more rigorous standard. A compelling interest is necessary to justify restrictions that curtail a significant amount of speech. Restrictions with lesser impact will be sustained if they further a substantial interest.

41. Protecting the Community from Nuisances Linked to Speech • Anti-noise ordinances • Ordinances protecting residential privacy • Anti-litter laws • Interference with ingress and egress to and from buildings and traffic • Restrictions on face-to-face solicitation • Signs and billboards • Permit regulations

42. Freedom of the Press Near v. Minnesota (1931) • Court ruled that no newspaper could be banned because of its contents regardless of how scandalous they might be. Roth v. United States (1957) • Court ruled that obscenity is not a constitutionally protected freedom of speech

43. Freedom of the Press Miller v. California (1973) • Court clarified the standards to define obscenity by establishing the following three-part test: • appealing to the prurient interest (appeal to one’s sexual interests and cause sexual arousal) • Is it patently offensive • Does it lack serious literary, artistic, political or scientific value

44. The Right to Peaceful Assembly Types of Public and Quasi-Public Property: • Publicly owned streets, sidewalks and parks • Government buildings • Public hospitals, schools, libraries • Quasi-public facilities (shopping centers, etc.) • Public property to which access by the public is limited and restricted

45. Rights of Prisoners Prisoners’ rights based on the First Amendment involve censorship of mail, expression within the institution, association within the institution, religion, appearance and visitation rights. Rational basis test • Standard for analyzing constitutional claims by prisoners

46. Rights of Prisoners Prewitt v. State of Arizona ex rel. Eyman (1969) • Court justified the screening of inmate mail, ruling: Mail censorship is a concomitant of incarceration, and as long as the censorship does not interfere with the inmate’s access to the courts, it is a universally accepted practice.

47. Rights of Prisoners Procunier v. Martinez (1974) • Restricted the censorship of inmates’ mail, holding such practices to be permissible only if there was a compelling, government interest in maintaining security. Turner v. Safley • Court upheld a restriction on prisoners from different institutions corresponding because of related gang problems and the potential for escape planning.

48. Rights of Prisoners O’Lone v. Estate of Shabazz (1987) • Court refused to force a prison to alter an inmate’s work schedule so he could attend certain services, citing the facility’s restrictions based on security concerns as “reasonably related to legitimate penological interest.” Reasonable accommodations must be made for prisoners to practice their religious faiths.