The First Amendment

1
The First Amendment

• Constitutional Law-Rights of the Accused
• Chapter 4
• Bill Henry

2
The First Amendment

• Protection of the first amendment is essential in
  a free democracy
• free and fair elections require open dialogue,
  debate
• First amendment was a result of avoiding
  religious persecution
• reason for fleeing Europe, essential element for
  believing in a free society

3
The First Amendment

• First Amendment is examined more often than most
  amendments
• freedom of the press
• internet
• inmate rights

4
Freedom of Religion

• Religious freedom is a key element of the First
  Amendment
• supported by the phrase Congress shall make no
  law
• The phrase is also used to protect verbal or
  written communication and assembly
• It must be remembered that constitutional
  language is rarely interpreted literally

5
Freedom of Religion

• The conflict is presented when government
  regulations are in conflict with perceived
  individual rights
• government is prevented from regulating first
  amendment protections unless the practice
  inflicts harm
• religious harm would include human sacrifice,
  animal sacrifice or cannibalism

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Freedom of Religion

• Strict scrutiny test
• 1963 opinion by Justice Brennan that tried to
  balance the governments regulating interest in
  religion to the individuals right to practice
• 1990, Brennans opinion was set aside by Justice
  Scalia for his free exercise clause

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Freedom of Religion

• Free exercise clause
• government does possess the authority to impose
  law and regulations on the entire citizenry even
  if those laws prevent some from participating in
  practices essential to their religious beliefs
  even if those practices impose no harm to other
  people (Scalia, 1990)

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Protecting Speech

• First Amendment was put into place to prevent
  government from punishing individuals for
  expressing their opinion
• this was so important to the authors that they
  used absolutist language using the term abridge
• Court tends to view first amendment issues in a
  non-absolutist fashion

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Determining Violations

• In examining first amendment issues, the courts
  must make a distinction between what is said and
  concerns unrelated to speech.
• Content based restricting the message and almost
  always a violation
• Content-neutral restricting concerns unrelated
  to the message

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Politics and Policy

• The ability to speak out about politics and
  policy is essential in a free society
• as recent as the early 1900s, the court allowed
  the arrest and prosecution of those that spoke
  out against government policy
• national security issue
• Political speech is protected unless it is
  designed to incite immediate lawless action

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Symbolic Speech

• Symbolic speech is also referred to as mute
  expressive acts
• Symbolic speech has never had the same level of
  protection as linguistic speech
• Has two elements expressive and behavioral
• Defining case was United States versus OBrien

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Symbolic Speech

• OBrien has been used to protect flag burning
• court has said because a few in society find it
  offensive or disagree does not make it a
  violation
• In cases with the Ku Klux Klan, courts have
  upheld violations because actions were designed
  to intimidate

13
Speech Not Protected

• There are five categories of speech not protected
  by the First Amendment
• Obscenity Test for obscenity is the Miller Test.
  Factors are
• more than arousing a normal interest in sex
• depicts hardcore sexual acts
• lacks serious literary, political, scientific or
  other value

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Speech Not Protected

• Fighting Words
• Speech content is personally abusive, insulting
  or derisive
• It is addressed at another to his/her face under
  circumstances likely to provoke an immediate and
  violent response
• It is not enough that the words are offensive or
  might provoke retaliation

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Speech Not Protected

• Incitement to Riot is classified as clear and
  present danger
• Speaker intends to incite audience to action
• speaker urges the audience to perform immediate
  concrete acts of violence
• danger of outbreak is imminent

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Interest Balancing

• Interest balancing is used to determine
  governments right to regulate speech concerning
  non-communicative impacts
• traffic noise
• trash
• domestic tranquility
• restriction must be least restrictive alternative

17
Freedom of the Press

• Protection is regarded as essential due to
  dissemination of information
• Individuals rely heavily on print and broadcast
  media
• Government must show a compelling interest to
  restrict media
• National Security
• Fair trial issues
• Change of venue

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To Know

• Abridged
• categories of unprotected speech
• first amendment relationship to free democracy
• symbolic speech
• Miller Test
• non-communicative impacts