Chapter 5 - The First Amendment

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 5The First

Amendment


“Prohibits Congress from making any laws that restrict freedom of religion, freedom of speech, freedom of the press or the right to gather or assemble peaceably and to request the government to respond to complaints from its citizens.”


The first right set forth in the Bill of Rights. The founding fathers wanted to guarantee every

individual religious freedom. It forbids the government constraint on people’s

choices of beliefs.o Requires that people be free to act on their

beliefs. An important legal issue is to keep church and

state separate.o To truly accomplish this is challenging.


“Congress shall make no law respecting an establishment of religion.”o Cannot create a national church or

proscribed religion. The government cannot show

preference to any particular religion.


Facts: Required all freshmen and sophomores to complete 6 units of military training to attain full academic standing as a junior.

Issues: Can students be compelled to take military courses if they object on religious grounds?

Holding: Yes. Rationale: States are permitted to, and have an

interest in, creating a citizenry capable of serving in the country's military. Attendance in the University of California is a privilege in which the students want to partake.


Facts: A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy.

Issues: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?

Holding: No. Rationale: Services like bussing and police and fire protection

for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment.


Must meet three standards:1. Have a primary secular purpose2. Have a principle effect that neither

advances nor inhibits religion and3. Not generate excessive

entanglement between government and religion, as set forth in Lemon v. Kurtzman


“Congress shall make no law…prohibiting the free exercise [of religion]”

It involves both the freedom to believe and the freedom to act.

Courts have had to balance the requirements of the free exercise clause against society’s legal, social, and religious needs.


Wooley v. Maynard , 430 U.S. 705 (1977)

Facts: New Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto, "Live Free or Die," and make it a misdemeanor to obscure the motto. The appellants blackened out the motto for moral reasons.

Issues: Can the state punish these citizens? Holding: No. Rationale: Forcing an individual, as part of his daily

life -- indeed, constantly while his automobile is in public view -- to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, invades the sphere of intellect and spirit which it is the purpose of the First Amendment .


Is the liberty to speak openly without fear of government restraint.

Closely linked to the freedom of the press because this freedom includes both the right to speak and the right to be heard.

Commonly called the freedom of expression.


Strict Scrutinyo Legal standard applied to due process

analysis of fundamental rights.o The state must establish that it has a

compelling government interest that justifies the law in question.

o The law must be narrowly tailored to fit that interest.

o High standard and difficult to defend.


Constitutional rights are NOT absolute. There are reasonable limits, when the government

has a legitimate interest, which are placed on where things can be said and, on what can be said.o Mostly occur in time of war

Espionage Act 1917- made illegal interference with recruiting or drafting soldiers or any act that adversely affected military moral.

Schenck v. United States (1919)o Was charged with espionage for distributing flyers that

encouraged young men to resist the draft.o This is an example when the good of the greater whole

outweighs the rights of the individual.


Clear and probable danger test- whether the gravity of the evil discounted by its improbability justifies an invasion of free speech necessary to avoid any danger.

Brandenburg v. Ohio (1969)o The court adopted a new test that replaced the “clear and

present danger test”.o Imminent lawless action test- 3 part test the government

must meet if certain communication is not protected under 1st Amendment.1. Speaker subjectively intended incitement.2. The words used were likely to produce imminent lawless action.3. Words used by the speaker objectively encouraged and urged

incitement.


Constitutional rights can be applied differently based on one’s profession.o As public employees, law

enforcement officers’ speech is protected under the First Amendment only if it is: 1) matter of public concern2) unrelated to employment


Symbolic speech iso A form of speech that expresses an idea or

emotion without the use of words.o Falls within the protection of the First

Amendment.o Examples of symbolic speech include:

• Flag burning• Cross Burning• Nude Dancing• Yard Signs


Facts: Nude dancers arrested for violating state public decency law.

Issues: Was requiring pasties and g-strings a violation of First Amendment artistic freedom?

Holding: No. Rationale: The dancing did enjoy some

marginal First Amendment protection but the state’s interest in promoting order and morality allowed it to make a modest imposition to achieve its purpose.


Facts: Teenager arrested for burning a cross in yard of a black family.

Issues: Is this protected speech? Holding: Yes. Rationale: Supreme Court held

ordinance was unconstitutional because it prohibits permitted speech solely on the basis of the subjects the speech addresses.


Is related to freedom of speech because speech is not considered only spoken words, but any means of conveying information.

Right to publish is not absolute. Government has restricted the right to

publish in 2 ways:1. Publishing certain materials (prior restraint).2. Punishing those who publish matter considered

seditious, libelous or obscene.


Facts: The Defendant was convicted under the California Penal Code for mailing advertisements for “adult” material to non-soliciting recipients.

Issues: Can state statutes may regulate obscene material without limit?

Holding: No. Rationale: Court clarified thee standards to

define obscenity by establishing a 3 part test:o Whether the average person, applying contemporary

community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest, that is, having a tendency to excite lustful thoughts.


Prisoners are using this “due process revolution” to have the courts rule on First Amendment issues related to correctional clients.

The courts have used the Rational Basis test to uphold prison regulations that are “reasonably related to legitimate penological interests.”

Issues where the courts have ruled include:o censorship of mailo expression within the institutiono association within the institution o religiono appearanceo visitation rights

Education

Chapter 5 - The First Amendment