Civil Liberties:The First Amendment

Bill of Rights

First 10 Amendments to Constitution Part of the “Deal” to Obtain State Ratification

of Constitution Originally Limited National Government Only Applied to States Through “Selective

Incorporation”– Which rights have not yet been incorporated?

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.”

First Amendment

Establishment Clause Free Exercise Clause Free Speech Free Press Right of Assembly Right to Petition Government

First Amendment

Establishment Clause Free Exercise Clause Free Speech Free Press Right of Assembly Right to Petition Government

Establishment Clause

Why? Thomas Jefferson: “wall of separation” Lemon Test: Government act must

– Have a secular purpose– In effect, neither advance nor inhibit religion– Not entangle government and religious institutions

excessively

Establishment Clause Issues

Public Schools: prayer, moments of silence, religious student groups, bible as a literary or historical text, teaching evolution / intelligent design

Private Schools: voucher programs, state buying textbooks, supplemental instruction

Public religious displays at holidays State-mandated 12 step programs

Free Exercise Clause

Why? Issues:

– Allowing parents to refuse medical treatment for children on religious grounds

– Allowing ceremonial use of illegal substances– Attempts to forbid animal sacrifice– Limits on ability of prisoners to practice their

religion

Freedom of Speech and Press

Bad Tendency (- 1919) Clear and Present Danger Doctrine

– Fighting Words (1942 – 1951)– Balancing Doctrine (1951 – 1960s)– In each case [courts] must ask whether the gravity of the

"evil," discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger

FUNDAMENTAL FREEDOMS DOCTRINE– Why??

Freedom of Speech and Press:What Is Protected?

Political speech Artistic expression “Speech plus”

– Symbolic speech/expression

Doctrine of Prior Restraint

Government cannot prevent press from publishing material

Applies even if publication can ultimately be punished

Why?

What Is NOT Protected?

Libel and Slander– Allow damages for false statements that harm

someone’s reputation– Public figures must show “actual malice”

Obscenity – defined by community standards– Appeals to prurient interest– Patently offensive– No literary, artistic, political or scientific value

Less Protected Speech

Speech by students, especially pre-college Commercial speech (advertising)