Michelle PalaroCJUS 2360Fall 2015

A Foundation for Understanding Constitutional Law

Chapter 5The First

Amendment

1st 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”

Freedom of Religion 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 beliefso Requires that people be free to act on their

beliefs An important legal issue is to keep church and

state separateo To truly accomplish this is challenging

Establishment Clause

“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

Hamilton v. Regents of the University of California , 293 U.S. 245 (1934)

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

http://en.wikipedia.org/wiki/Hamilton_v._Regents_of_the_University_of_California

Everson v. Board of Education (1947)

Everson v. Board of Education (1947), cont;d

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

How to Challenge the Establishment Clause?

Must meet three standards:1. Have a primary secular purpose2. Have a principle effect that

neither advances nor inhibits religion

3. Not generate excessive entanglement between government and religion, as set forth in Lemon v. Kurtzman (http://en.wikipedia.org/wiki/Lemon_v._Kurtzman)

Free Exercise Clause

“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

http://en.wikipedia.org/wiki/Wooley_v._Maynard

Freedom of Speech 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

Freedom of Speech, cont’d Strict Scrutiny

o 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

Symbolic Expression Symbolic speech

o 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

R.A.V. v. St. Paul, 505 U.S. 377 (1992)

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

http://en.wikipedia.org/wiki/R.A.V._v._City_of_St._Paul

Barnes v. Glen Theatre, 501 U.S. 560 (1991)

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

http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc.

Restrictions on Freedom of Speech

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

government has a legitimate interest, which are placed on where and when things can be said and on what can be saido Mostly occur in time of war or national emergency

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 drafto This is an example when the good of the greater whole

outweighs the rights of the individual

Miller v. California , 413 U.S. 15 (1973)

Miller v. California , 413 U.S. 15 (1973), cont’d

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

Restrictions on Freedom of Speech, cont’d

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 Amendment1. Speaker subjectively intended incitement2. The words used were likely to produce imminent lawless

action3. Words used by the speaker objectively encouraged and

urged incitement

First Expression Rights of Public Employees

Constitutional rights can be applied differently based on one’s professiono 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

Freedom of the Press Related to freedom of speech because

speech is not only considered 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

First Amendment Rights of Prisoners

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