Protecting Constitutional Freedoms: Unpacking Your First Amendment Rights

1. Chapter 15 Constitutional Freedoms

2. Your First Amendment Rights • 1. Freedom of speech • 2. Freedom of the press • 3. Freedom of religion • 4. Freedom of assembly • 5. Freedom to petition the government

3. Types of Speech • The First Amendment exists to protect the expression of unpopular ideas—popular ideas need little protection. • Pure speechis the verbal expression of thought and opinion before an audience that has chosen to listen. • Symbolic speech—sometimes called expressive conduct—involves the use of actions and symbols, in addition to or instead of words, to express opinions.

4. Symbolic Speech • Symbolic speech has less protection than “pure speech” • Protected: picketing, flag burning, black armbands • Not protected: burning draft cards, burning a cross with the intent to intimidate, camping on the capitol mall • The standard: content neutral, the government limits the minimum speech needed to protect a governmental interest

5. Symbolic Speech (cont) • Tinker v. Des Moines School District (1969)—protects the rights to wear black armbands in school to protest the Vietnam war Students do not give up their rights to free speech while in school. (Students won.) Mary Beth and John Tinker (sister 13, brother 15

6. Regulating Speech • 1. Clear and Present Danger Rule: 1stAmendment does not protect those forms of expression that pose a clear and present danger of bringing about some evil that government has a right to prevent.Ex.sayingthings that will create dang espionage.erto society, such as during wartime like interfering with the draft, • The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. • Schenck v United States, 1919 - Charles Schenck, a Socialist Party member, sent letters to 15,000 men who had been drafted, urging them to resist the call to military service. He was found guilty of obstructing the war effort. The Supreme Court upheld the ruling, establishing the “clear and present danger” rule. • Justice Holmes wrote “Words can be weapons…. The questions is whether the words…. Create a clear and present danger…”

7. Regulating Speech (cont) • 2. Bad Tendency Doctrine • Gitlow v. New York (1925)—the Supreme Court ruled that speech could be restricted even if it had only a tendency to lead to illegal action. Since 1920s the bad tendency doctrine has lost support from the Supreme Court • Example: Yelling “Fire” in a crowded theater.

8. Regulating Speech (cont) • 3. The Preferred Position Doctrine 1940 holds that 1st Amendment freedoms are more basic than other freedoms. So any law limiting these freedoms should be ruled unconstitutional unless the government can show the law to be absolutely necessary.

9. Other Unprotected Speech • The First Amendment does not protect defamatory speech, or false speech that damages a person’s good name, character, or reputation. There are two types of defamatory speech: • Libel, the false and malicious use of written words • Slander, the false and malicious use spoken words

10. Other Unprotected Speech (cont.) • The Court has limited the right of public officials to recover damages from defamation. • In 1942 the Supreme Court ruled that some words are so insulting that they provoke immediate violence. Fighting Words Offensive, derisive, annoying, etc. Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

11. Speech Not Fully Protected • Student Speech • Bethel School District v. Fraser (1986)—Supreme Court ruled that the 1st amendment does not prevent school officials from suspending students who use indecent language at school events. The Supreme Court says that schools have broad authority to regulate student speech in school-sponsored newspapers, theatrical productions, and other activities. These things are “part of the curriculum,” not an individual’s personal expression of thought. Hazelwood v. Kuhlmeier (1988)

12. Commercial Speech is speech for business purposes, usually advertising. • The 1st and 14th Amendments protect advertising, but not false or misleading advertising.

13. Freedom of the Press What does press and media include? • Books • Newspapers • Magazines • Radio • Television • Internet

14. Radio and Television • 1. Stations obtain license from the FCC (Federal Communication Commissions) • 2. FCC requires stations to follow certain guidelines in presenting programs • 3. 1997—Court ruled that cable television has more 1st amendment protection from government regulation than other broadcasters, but not as much as publishers of newspapers & magazines. • (Turner Broadcasting System v. FCC (1997)

15. E-mail, the Internet and Movies • Reno v. American Civil Liberties Union (1997)—Court ruled that Internet speech deserves the same free speech protection as other print media • Movies Burstyn v. Wilson (1952)—Supreme Court ruled that the 1st 7 14th Amendments guarantee motion pictures “liberty of expression” However, the Court also ruled that movies may be treated differently than books or newspapers.

16. Obscenity • Material must lack “redeeming social value” • Material must be “patently offensive” • “Reasonable person” to be judge of “community standards” • Supreme Court distinction between obscenity in public and in home • Miller v. California (1973)—Court ruled that communities should set their own standards for obscenity in speech, pictures, & written material, however, the Court has since stepped in to overrule specific local acts, making it clear that a community’s right to censor is limited.

17. Protecting News Sources • Many reporters argue that freedom of the press gives them the right to refuse to reveal confidential sources. In 3 1972 cases, the Supreme Court held that reporters have no such right, but added that Congress & states can give reporters this protection. 30 states have passed which protect reporters from disclosing Shield laws—confidential information or sources in state courts. There is still no federal shield law, but even state laws set limits on reporters

18. Prior Restraint Forbidden • Prior restraint is censorship of information before it is published • The Supreme Court has ruled that the press may be censored in advance only in cases relating directly to national security. • Near v. Minnesota helped establish that free press means freedom from government censorship.

19. Prior Restraint (cont) • New York Times Co. v. United States (1971)—reaffirmed the prior restraint doctrine established in Near v. Minnesota (1931) • Supreme Court refused to halt publication of the Pentagon Papers, which gave a detailed critical account of U.S. involvement in the Vietnam War.

20. Fair Trials and Free Press • In Sheppard v. Maxwell the Supreme Court ruled that press coverage interfered with Sheppard’s right to a fair trial. • When a jury is sequestered it is kept isolated until the trial ends. • A gag order is an order by a judge barring the press from publishing certain types of information about a pending court case.

21. Press Issues At Trials • To restrain press coverage of a trial, the Court suggested the following measures: • 1. Moving the trial to reduce pretrial publicity. • 2. Limiting the number of reporters in the courtroom • 3. Placing controls on reporters’ conduct in the courtroom • 4. Isolating witnesses and jurors from the press • 5. Having the jury sequestered-kept isolated—until the trial is over

22. What rights are covered by the freedom of assembly? • Protects our right to gather in groups for any reason, so long as the assemblies are peaceful. • They can make rules about when and where, but cannot ban them. • We also have the right to form and join social clubs, political parties, labor unions, right to parade and demonstrate in public. • To provide for public order and safety, many states and cities require that groups wanting to parade or demonstrate first obtain a permit.

23. Protecting Freedom Of Assembly • In the DeJonge v. Oregon (1937) case, the Court extended the right to freely assemble to protect the right of individuals to freedom of association. Individuals may freely join a political party, interest group, or other organization.

24. Protecting Assembly And Disorder • A heckler’s veto is a term used to describe when the public vetoes the free speech and assembly rights of unpopular groups by claiming that demonstrations will result in violence. • Feiner v. New York established that police may disperse a demonstration and limit the freedom of assembly if it threatens the peace. Supreme Court ruled that the 1st amendment protected free speech, but not the right to use speech to incite a riot

25. What does freedom of petition allow the citizens to do? • The right to express one’s idea to the government. • Petition = formal document • In a free country we punish men for crimes they commit but never for the opinions they have.” Harry S. Truman

26. What does the 1st amendment prohibit Congress from doing concerning religion? • Congress cannot establish an official religion in the United States • The Establishment Clause • Guarantees Americans the right to practice their faith as they wish • Free-Exercise Clause • They may not favor one religion over another or treat people differently because of their personal beliefs

27. Establishment Clause Separates Church and State Thomas Jefferson called the Establishment Clause “a wall of separation between church and state.” However, the gov’t supports churches and religion in a variety of ways, including tax exemptions. Church and gov’t are constitutionally separated from one another.

28. The Establishment Clause • Everson v. Board of Education involved a challenge to a New Jersey law allowing the state to pay for busing students to parochialschools—schools operated by a church or religious group. • The Court ruled that the law was constitutional because it benefited students rather than religion directly. • In Board of Education v. Allenthe Court upheld state programs that provide secular, or nonreligious, textbooks to parochial schools. • Other important controversial cases involving religion address release times for students, school prayer, and the teaching of the theory of evolution.

29. The Establishment Clause Court Cases • 1. Engel v. Vitale (1962) • The Court ruled that a nondenominational prayer used in a public school is unconstitutional • 2. Abington School District v. Schempp (1963) & Murray v. Curlett (1963) • Court banned school sponsored Bible reading & recitation of the lord’s Prayer in public schools • Reason: Teachers whose salaries were paid by tax dollars conducted the activities in public buildings (Violated 1st Amendment)

30. The Establishment Clause Cases (cont) • Lemon v. Kurtzman (1971)—Lemon Test—Is the establishment clause being violated? • To be constitutional, state aid to church schools must: • - have a clear secular, nonreligious purpose • - neither advance a religion nor discourage the • practice of a religion. • - avoid “excessive government entanglement with • religion”

31. The Free Exercise Clause • The Court upheld his conviction and established that people are not free to worship in ways that violate laws that protect the health, safety, or morals of the community. • The Court usually follows precedent, decisions made on the same issue in earlier cases. • In addition to banning an established church, the First Amendment forbids laws “prohibiting the free exercise” of religion. • In the case of Reynolds v. United States, George Reynolds appealed his polygamy conviction, claiming that the law abridged, or limited, freedom of religion.

32. Students & Religion As students, it’s important to know your religious rights in school. • You are free to pray alone or in groups, as long as the activity is not disruptive and does not infringe upon the rights of others. • As long as it is not disruptive, disrespectful of the rights of other students, and does not pressure or coerce others, you can exercise your faith. • Schools cannot organize religious activities. This includes making students pray.

33. Religious Landmark Court Cases • 1. Minersville School District v. Gobitis (1940) Court ruled that requiring children to salute the flag did not infringe on religious freedom • 2. West Virginia State Board of education v. Barnette (1943) overturned Gobitis decision. Court concluded that patriotism could be taught without forcing people to violate their religious beliefs • 3.Wisconsin v. Yoder (1972) Court declared that the state could not require Amish parents to send their children to public school beyond the 8th grade

34. REMEMBER: • The government cannot force you to believe in any religion. Everybody has the right to practice the faith they believe in, when and where they want to. Thanks for the First Amendment, we are all guaranteed the freedom of religion. • KNOW YOUR RIGHTS!!!!!!

35. Class Activity Write a paragraph explaining WHY freedom of religion is an important FIRST AMENDMENT right TO YOU

36. Constitutional Rights • The belief in human rights, or fundamental freedoms, lies at the heart of the American political system. • The Constitution of the United States guarantees certain basic rights in the Bill of Rights, comprised of the first 10 amendments, and in several additional amendments.

37. Constitutional Rights (cont.) • The Bill of Rights was not originally intended to limit state and local governments. • The Supreme Court has interpreted the due process clause of the Fourteenth Amendment to apply the guarantees of the Bill of Rights to state and local governments.

38. Constitutional Rights (cont.) • The Supreme Court interpreted the words due process to include other protections of the Bill of Rights: • protection from unreasonable search and seizure • the right of the accused to have a lawyer • protection from cruel and unusual punishment

39. 14th Amendment • No state shall deny to any person within its jurisdiction the equal protection of the laws” • Original purpose: protect the rights of former slaves and free blacks • Made state govt’s protect citizens’ Constitutional rights • Limited the power of state govt’s after the Civil War

40. Do these laws violate the equal protection clause of the 14th Amendment? Why/ why not? • Adults under 21 can’t drink alcohol • Women can’t be firefighters • Physically handicapped people can’t be firefighters • Women can’t be guards at all-male prisons • Only men have to register for the draft

42. The Meaning of Due Process

43. Right To Equality: Three Tests Are Used In Court 1.Rational basis test 2.Strict scrutiny test 3. Substantial relationship test

44. Strict Scrutiny Test • Used for cases dealing with race, nationality, origin, citizenship, or fundamental Constitutional rights • Question: Does the law serve a compelling government interest (is there a purpose to this law)? Is there a less intrusive (nosey) way? • If answer to 1st is yes, and 2nd is no, it is constitutional • Example: A town passes a law against ritual animal sacrifice by a certain religion. Compelling gov’t interest? Yes, humane treatment of animals. Less intrusive way? Yes, don’t target religion, just pass a law against killing animals in general.

45. Substantial Relationship Test • Used in sex discrimination cases • Question: Is there a close connection between law/practice and its purpose? Does law/practice serve important gov’t interest? • If answer is yes to both, then constitutional. • Example: State law requires high school boys to take four years of gym and high school girls to take two. • Unconstitutional because there is not a close connection between being male and needing more physical activity

46. Rational Basis Test • Used in most cases • Question: Does the law have a rational basis? Is their a logical explanation for the purpose of the law? If yes, it is constitutional • For Example: in general, people become more responsible as they get older, so it is logical to not allow young people to drive

47. Constitutional Rights (cont.) • The process by which the Bill of Rights was extended to the states and localities is incorporation. • The incorporation of the Bill of Rights means that U.S. citizens in every part of the country have the same basic rights. • In practice, nationalization means that citizens who believe that a state or local authority has denied them their basic rights may take their case to a federal court.

48. Important Court Case • Gitlow v. New York (1925) • Benjamin Gitlow, a radical Socialist, challenged a New York law forbidding the advocacy of the violent overthrow of the government. • The Supreme Court ruled against Gitlow, declaring the law to be constitutional. • But in the majority opinion, Justice Edward Sanford declared that freedom of speech and press were among the fundamental rights protected by the Due Process Clause, specifically the word “liberty.”

49. Equal Protection Cases Brown vs. Board of Education (1954) • “Separate educational facilities are inherently unequal” • Overturned Plessy decision • Outlawed segregation in every state • Not followed in some southern states until forced by federal troops

50. Non-Violent Protest • Boycotts Refusing to buy goods or services from a business in order to force it to change its policies • Hunger strikes Refusing to eat anything in order to get attention for your cause • Petitions Writing a letter to ask the government or a company to change its policy, and then getting as many people to sign it as possible. • Marches and demonstrations Getting as many people as possible to gather in one place to get attention to your cause • Strikes Refusing to work in order to force your managers or government to change their policies • Sit ins The protesters come into a place, sit down, and refuse to move.