Why the Bill of Rights? • Designed to protect Americans against the overuse of power by the federal government. • The 14th Amendment (equal protection under law) applies the protections in the Bill of Rights to state and local governments (including public schools).
3 Basic Constitutional Principles 1. Constitutional rights are NOT absolute. • The unrestricted exercise of certain rights would eventually restrict the rights of others. • You can exercise your rights until the point that it infringes on the rights of others, endangers public safety, or breaks the law. • Ex: You cannot claim that the use of an illegal drug is protected by freedom of religion, because the use of the drug breaks drug laws. • Ex: You cannot yell “FIRE!” in a public building and claim it is protected by freedom of speech/expression, because the exclamation endangers public safety.
3 Basic Constitutional Principles 2. The Constitution protects citizens from certain actions by the government, not other citizens, businesses, or organizations. • Ex: the 4th Amendment protects you from unreasonable searches/seizures by the government, not private citizens. A robber’s actions do not violate the 4th Amendment. • Many private actions (though not unconstitutional) have been made unlawful by congressional or state legislative action • Ex: The 14th Amendment provides that everyone is treated equally under the law, therefore voting discrimination based on race/sex is unconstitutional. However, the 14th Amendment did not apply to the hiring practices of private companies. LAWS were passed to ban discrimination in hiring procedures.
3 Basic Constitutional Principles 3. There are rightsretained by individuals that are NOT explicitly written in the Constitution. • Remember the 9th Amendment? • Ex: Right to privacy
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.
Freedom of Speech/Expression • What types of speech and expression are protected by the 1st Amendment? • Speeches and interviews (can be controversial) • Ex: Phil Robertson’s comments on homosexuality and civil rights in his infamous GQinterview • Ex: Daily Show “Words with Fringe” • Books, newspapers, and internet publications • Artand music • TV and films • Symbolic speech (conduct that expresses an idea) • Ex: flags, tape over mouth, etc.
Freedom of Speech/Expression • Why is freedom of speech important, even when the speech/expression is unpopular? • Provides Americans with a “marketplace of ideas.” • Instead of the gov’t establishing one notion of “truth,” freedom of speech enables the truth to emerge from the presence and exchange of diverse opinions. • Through discussion, society can adapt to changing circumstances without resorting to force or violence.
Restriction of Freedom of Speech • When a person speaks publicly, there are 2 elements interacting: • Freedom of speech depends on how these elements interact in different situations • Remember, not all rights are absolute.
Obscenity • Anything that treats sex or nudity in an offensive or lewd manner, exceeds recognized standards of decency, and lacks serious literary, artistic, political, or scientific value. • How is pornography protected? • What makes a word “obscene?”
Obscenity Test • Miller v. California (1957) – 3-part test to determine if an expression is obscene. • Would the average person applying contemporary community standards find that the material, taken as a whole, appeals to prurient (overly-sexual) interests? • Does the work depict or describe, in a patently offensive way, sexual conduct specifically outlawed by applicable state law? • Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value? • Yes to any of these questions Obscene (but maybe still protected by 1st Amendment.) • Time and context specific test.
Incitement Test • Brandenburg v. Ohio (1968) - 2-part test to determine if speech incited dangerous or illegal actions. • Is the speech "directed at inciting or producing imminent lawless action?“ (for the purpose of encouraging illegal actions) • Is the speech "likely to incite or produce such action?“ (likely to result in illegal actions) • Yes to either of these questions NOT protected by 1st Amendment.
Landmark SC Cases – Speech, Obscenity, and Incitement • Texas v. Johnson (1988)
Commercial Speech • Communication between businesses and consumers • Ban on commercial speech that is false or misleading • Limits on commercial speech for certain products • Ex: Cigarettes cannot be advertised on TV. • no advertisements on radio or TV programs or in any magazine publications which have an audience that is under the age of 21 • no advertisements on Universities, Colleges or any other Schools in their programs for theatrical performances, sport events etc. • cannot represent cigarette smoking as the way to be cooler, better known to the opposite sex or to get higher up on the social ladder • actors or models in cigarettes ad campaigns have to be at the very least 25 years old • ads cannot depict any of them being described as an athlete or of having been in athletic career fields.
Defamation • False expression about a person that damages that person’s reputation • NOT protected by freedom of speech • Spoken lies – slander • Written lies – libel • If statement is proven to be true, defamation has not occurred.
Hate Speech • Speech/expression motivated by bigotry and racism. • Protected by the 1st Amendment as long as it doesn’t incite illegal actions or make others fear physical danger. • While legal, it can be unpopular thus creating social backlash. • Ex: Donald Sterling’s remarks on blacks at Clippers games ARE PROTECTED by the 1st Amendment, thus he will not face criminal charges. HOWEVER, the public reaction was incredibly negative (effectively isolating him in the public sphere and socially punishing him for his remarks). • Ex: Westboro Baptist Church’s remarks at funerals of soldiers unpopular but protected by freedom of speech.
Landmark SC Case – Hate Speech • Snyder v. Phelps (2010)
Freedom of Religion • Right to believe and practice any religion/faith. • Right to have no religious beliefs at all.
Separation of Church and State Not in the Constitution Letter from Jefferson to the Danbury Baptist Association in 1802 “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.”
Why Freedom of Religion? • Protect religion from being corrupted by the state • Protect government from corruption caused by religious conflicts
2 Pronged Freedom: Establishment Clause • “Congress shall make no law respecting an establishment of religion” • Prohibits the federal establishment of a national church • Prohibits federal interference with existing state churches • How do we distinguish between acceptable and unacceptable government involvement in religion? • The LEMON Test… • The ENDORSEMENT Test…
Landmark SC Case – Gov’t State Establishment of Religion • Lemon v. Kurtzman(1971)
The Lemon Test • Lemon Test – 3-part test to determine if laws violate the Establishment Clause • “A law is constitutional if it…” • Has a primarily secular (non-religious) purpose. • Neither principally aids nor harms religion • Prevents the gov’t from become excessively entangled with religion. • Law must pass ALL 3 parts.
Landmark SC Case – Gov’t State Endorsement of Religion • Lynch v. Donnelly (1984)
The Endorsement Test • Endorsement Test – “A government action is unconstitutional if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.” • VAGUE – often contested. • Recent SC decision (5-4) allowing prayer at the beginning of gov’t meetings even if it plainly favors a specific religion
2 Pronged Freedom:Free Exercise Clause • “Congress shall make law… prohibiting the Free Exercise thereof…” • Prohibits federal interference with an individual’s religious practice • NOT ABSOLUTE - Free to practice until illegal activities are committed, public safety is endangered, or the rights of others are infringed upon.
Landmark SC Case – Freedom of Religious Exercise • Employment Division v. Smith (1989)
Why Freedom of Press? • To protect the right to obtain and publish information or opinions without government censorships or fear of punishment. • Prevent government corruption/abuse of power. • Create transparency in society about facts and opinions
History of Freedom of the Press • 1773 – John Peter Zenger • German immigrant, printed the New York Weekly Journal • Printed articles harshly criticizing the corrupt royal Governor (accused him of rigging elections and other crimes) • Jailed for criticizing the gov’t and refusing to name the anonymous authors charged with LIBEL • At the time, a libel charge was brought against anyone criticizing the gov’t (regardless of truth or falsity)
History of Freedom of the Press • Zenger’s Trial (1733) • Jury originally packed with people paid by the Governor • Zenger’s wife published articles about the unfairness of the trial new jury with unbiased peers and new attorney • Attorney admitted that Zenger printed the articles BUT demanded the prosecution prove they were untrue. • Judge ordered jury to convict Zenger if they believed he published the articles • Jury said NOT GUILTY precedent for freedom of the press
Landmark SC Cases – Press Freedoms • Near v. Minnesota (1929)
Freedoms Worldwide Where does the US stand in relation to other countries concerning freedom of speech, religion, and press?
-2.5 (weak) to +2.5 (strong) This map shows "Voice and Accountability", a dimension of governances in Worldwide Governance Indicators (WGI) project by World Bank Group, which reflects perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media.
What is Press Freedom Index? The Press Freedom Index is an annual ranking of countries compiled and published by Reporters Without Borders based upon the organization's assessment of their press freedom records. It reflects the degree of freedom journalists and news organizations enjoy in each country, and the efforts made by the state to respect and ensure respect for this freedom.