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)