The First Amendment

1. The First Amendment Introducing Civil Liberties

2. The First Amendment • Originally adopted into the Constitution in 1791 • A product of the ratification delay by Anti-Federalists • By itself, it protects Americans from the national government ONLY. • Selective Incorporation

3. First 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.

4. 14th Amendment • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; • nor shall any State deprive any person of life, liberty, or property, without due process of law; • nor deny to any person within its jurisdiction the equal protection of the laws.

5. Who Decides How Far Our Rights Go? • The Federal Courts decide (including Supreme). • The Balance Test People’s Rights Govt. Interest

6. Common Misconceptions • Our freedoms are NOT UNLIMITED. • Limits usually arise when safety, order, or others’ rights are jeopardized. • Rule of Thumb: You have the right to express yourself in many ways unless others are offended or put in harm’s way.

7. Freedom of Speech • 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. • The freedom of speech does not limit expression to only verbal communication. Non verbal expression is also protected and restricted.

8. 5 Restrictions to Free Speech The freedom of speech is very broad, but has 5 restrictions on the content expressed. • Defamation of Character • Obscenity • Fighting Words • Subversive Speech • Commercial Speech

9. Restrictions to Free Speech: Defamation of Character • Defamation: An act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. • Defamation is found in two forms: • Slander: spoken lies • Libel: written lies (pertains to press and…..)

10. Restrictions to Free Speech: Obscenity • For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest (in the interest of sex); (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value. • The main problem with obscenity is the VAGUE nature of its criteria.

11. Obscene? • The Virgin Mary by British artist Chris Ofili. • The work incorporated elephant feces.  • Personally offended by the piece New York City mayor, Rudy Giuliani threatened to cut about $7 million a year in funding to the museum unless the exhibit of the Holy Virgin Mary was cancelled.

12. Obscenity: The 2 Live Crew • The 2 Live Crew was arrested in 1990 in Broward County, Florida for performing their popular track: “Me So Horny” from their album, As Nasty As They Wanna Be. • The American Family Association put pressure on Florida governor Bob Martinez to pursue the group in search of obscenity violations.

13. Restrictions to Free Speech: Fighting Words • Fighting Words: words intentionally directed toward another person which are so venomous and full of malice as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically. • The use of fighting words is not protected by the free speech protections of the First Amendment of the U.S. Constitution.

14. Restrictions to Free Speech:Subversive Speech • Subversive: Expression that threatens the security of the United States • Examples: resisting the draft during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government. • Schenck v. United States • “If they ever make me carry a rifle, the first man I want in my sights is L.B.J." Watts v. United States • The Court ruled that the government could not punish an anti-war protester who yelled, “We'll take the f***ing street later," because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time." Hess v. Indiana • Brandenburg v. Ohio

15. Restrictions to Free Speech: Commercial Speech • Advertising deserves more protection than other types of speech because of the consumer's interest in trustworthy information about products. • We depend on information regarding the quality, quantity, and price of various goods and services. • Courts must decide: Is it puffing or false advertising? • Puffing: making your product look better than it is • False advertising: lying to the consumer to sell more products

16. Commercial Speech: false advertising • Dannon accused of lying in advertisements about the "clinically proven" ability of Activia, to "regulate digestion" or improve the body's "immune system". The products cost about 30 percent more than ordinary yogurt. • "Dannon's own studies fail to support this advertising message, and a number of them flatly contradict Dannon's claims," the complaint says.

17. Other Types of Speech: • Expression can be in a non-verbal form. • Symbolic Speech: Expression that may use actions, symbols, signs, or inaction. • Examples: • Texas v Johnson (1989) • Flag burning to protest Ronald Reagan in 1984 • Tinker v Des Moines (1969) • Armbands in school to protest the Vietnam War

18. Texas v Johnson (1989) • 1984:in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. • Johnson was tried and convicted under a Texas law outlawing flag desecration. • He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Is the desecration of an American flag a form of speech that is protected under the First Amendment?

19. Texas v Johnson (continued)… • In a 5-to-4 decision, the Court held flag burning was protected expression under the First Amendment. The Court found that the actions were expressive conduct and had a political nature. • “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.”

20. Freedom of Press • Freedom of Press: the right to publish newspapers, magazines, books, etc. without government interference or prior censorship • 33% of the world’s countries do not have free press • A close relative of free speech • Similar restrictions: • Defamation (Libel) • Obscenity • Sedition (against the government)

21. Freedom of Press • Advances in technology have redefined the format in questioning freedom of press. • Newest to Press • Email/ text messaging • Difficult to control • Blogs, satellite TV, Internet conversation

22. Freedom of the Press: Hazelwood v Kuhlmeier • The principal at Hazelwood School District deleted 2 pages of edition of the school newspaper before publishing. • He felt as though the articles on teen pregnancy and divorce: • Did not keep the students' identity secret • Should not have discussed girls’ use or non-use of birth control based on younger student audiences. • Did not fairly represent a father in a divorce

23. Freedom of Press:Hazelwood v Kuhlmeier • In a split 5-3 decision, the Court ruled that the principal did have the constitutional grounds to censor the school newspaper • The paper itself was not a "forum for public expression" but was rather a "regular classroom activity." • Schools can censor material that is: • "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences."

24. Freedom of Religion • Congress shall make no lawrespecting 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. • Two clauses: • Establishment Clause • Free Exercise Clause

25. Freedom of Religion • ESTABLISHMENT CLAUSE • The government cannot establish a national religion nor promote any one religion over another. • FREE EXERCISE CLAUSE • The government cannot restrict someone from worshipping any religion they choose.

26. Freedom of Religion: Establishment • The establishment clause is referred to as “the wall of separation between church and state”. (Thomas Jefferson) • DESPITE the following: • Religious sects are tax exempt • Chaplains serve in all military branches • Oaths of office “under God” • Congress opens with prayer • Pledge of Allegiance • Currency

27. Freedom of Religion: Education • Most establishment clause cases involve schools, because public schools are funded by taxes and occasionally restrict/encourage religious activities. (state/church) • Controversy: • Prayer in School • Student Religious Groups • Teaching Evolution • Aid to parochial schools • Seasonal displays

28. Freedom of Religion: Religion and Education • Engel v. Vitale,(1962) - Court finds NY school prayer unconstitutional. • Abington School District , PA v. Schempp,(1963) - Court finds Bible reading over school intercom unconstitutional • Stone v. Graham,(1980) - Court finds posting of the Ten Commandments in schools unconstitutional • Wallace v Jaffree, (1985)“ moment of silence” law ruled unconstitutional a one-minute period of silence for “meditation or prayer” every day • Lee v. Weisman,(1992) - Court finds prayer at public school graduation ceremonies violates the establishment clause and is therefore unconstitutional. • Santa Fe Independent School District v. Doe,(2000) - Court rules that student-led prayers at public school football games violate the Establishment Clause of the First Amendment.

29. Deciding Freedom of Religion: Lemon Test • Based on the case (Lemon v Kurtzman, 1971) involving public money provided to parochial schools for teacher’s salaries and materials, a test was provided by the courts. The Lemon Test says public aid must: • be secular, or non-religious • not promote nor hinder religion • not create an excessive entanglement between government and religion.

30. Freedom of Religion: Free Exercise • No law and no government action can violate this absolute constitutional right. • Examples • A state can not force Amish to attend school beyond the 8th grade. • A religious official can not be refused the right to run for public office. • A school can not force a student to pledge the flag if it conflicts with their religious beliefs.

31. Freedom of Religion: The Pledge • Original version: Francis Bellamy (1892) I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all. • Cold War version: Eisenhower authorized (1954) I pledge allegiance to the flag of the United States of America and to the republic for which it stands: one nation under God, indivisible, with liberty and justice for all.

32. Freedom of Assembly • The First Amendment reads: • 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.

33. Freedom of Assembly • Assembly, like the other five freedoms, was intended to protect unpopular expression. • The right to show power in numbers can be an effective tactic to creating change. • Limits on assembly usually include time, place, and manner (behavior) of the assembly. • Most municipalities have permit requirements for organized assemblies.

34. Notable Assemblies • Marches for civil rights • Birmingham • Selma • March on Washington • Inaugural March (women suffrage) • Groups that have successfully used assembly • Hate groups • Women • Veterans • Gay Rights Advocates

35. Assembly: Example • The Civil Rights movement of the early 1960s demonstrates the power and problems with the freedom of assembly. • Marches in Birmingham, Washington, and Selma illustrate a large collective voice, progress, and possible dangers.

36. Assembly: Skokie 1977 • The National Socialist Party of America (a Neo-Nazi group) planned a march in the town of Skokie, Illinois, a largely Jewish community. • Some Skokie residents were Holocaust survivors. • Local municipalities put a huge price on insurance bond (in case of violence) and to prevent the march. • National Socialist Party was represented by the American Civil Liberties Union (ACLU) for the right to march in Skokie. • The United States Supreme Court sympathized with the Skokie residents, but allowed the National Socialist Party to march anyway. • Party leader, Frank Collin calls off march. Marches in Chicago.

37. Freedom of Petition • 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.

38. Freedom of Petition • The Supreme Court has ruled that the right to petition the government includes the right to do such things as picket, mail letters, sign petitions, publish materials or use other types of communication to get a message across to the government. • It is also generally combined with the right to free speech and the right of assembly to ensure that people can form groups or associations to get their messages across.