The First Amendment

1
The First Amendment

• Government
• Mrs. Cheney

2
The 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 to assemble, and to petition the
  Government for a redress of grievances.

3
Historical Background

• In 16th century England, could be imprisoned or
  put to death for saying you didnt like the
  government
• Colonial America
• Freedom of Speech first mentioned in
  Massachusetts Body of Liberties in 1641
• Several states included freedom of speech in
  their constitutions

4
The Sedition Act of 1798

• Sedition the urging of opposition to lawful
  authority or rebellion against the government
• Made it a crime to write, print, or say anything
  false, scandalous, and malicious against the
  government and its officials

5
Types of Speech

• Pure speech involves only spoken words
• ex.) debates, public meetings
• Receives the most protection
• Speech plus action speech combined with action
• Ex.) demonstrating, picketing
• The speech portion is generally protected, but
  the action portion may be regulated
• Symbolic speech conduct that conveys a message
  in itself, without spoken words
• Expressive conduct
• Some forms protected, others are not
• Protected burning draft cards, burning American
  flag

6
6 Restrictions on Free Speech

• Obscenity
• Fighting Words
• Defamation
• Clear and present danger
• Time/place/manner
• False and misleading advertising

7
Limitations of Freedom of Speech

• Obscenity
• Anything that depicts sex or nudity in a way that
  violates societys standards of decency
• 3-part test (Miller Test)
• The average person, applying contemporary
  community standards, would find that the work,
  taken as a whole, appeals to an obsessive
  interest in sex
• The work depicts or describes, in a patently
  offensive way, a type of sexual conduct
  prohibited by law
• The work, taken as a whole, lacks serious
  literary, artistic, political, or scientific
  value
• A person may possess obscene materials for
  private use in his home

8
Fighting words

• Chaplinsky v. New Hampshire
• Fascist and Racketeer
• 1st amendment does not protect abusive or
  insulting language when face-to-face words or
  epithets likely to provoke the average person to
  retaliation and thereby cause a breach of the
  peace.
• Inconsistently applied

9
Defamation

• Libel and slander
• Writing or saying something false about another
  person that ruins his/her reputation
• Hustler v. Falwell
• (aka People v. Larry Flynt)

10
Clear and Present Danger

• Schenk v. United States
• whether the words used are used in such
  circumstances and are of such a nature as to
  create a clear and present danger that they will
  bring about the substantive evils that Congress
  has a right to prevent
• shouting fire in a crowded theater
• Brandenburg v. Ohio
• imminent lawless action

11
Time, place and manner test

• 1.  Does the regulation serve an important
  governmental interest?
• 2.  Is the government interest served by the
  regulation unrelated to the suppression of a
  particular message?
• 3.  Is the regulation narrowly tailored to serve
  the government's interest?
• 4.  Does the regulation leave open ample
  alternative means for communicating messages?

12
Public Forums

• A place that is traditionally used for freedom of
  speech, assembly and petition
• Govt may regulate time, place, and manner of
  speech in public forum
• When, where, and how freedoms may be exercised
  in public forum
• Government can forbid use of loudspeakers in park
  after 900 regulate noise
• Regulations must be content-neutral
• Cannot forbid speech based on its content

13
Commercial Speech

• Advertising/Commercial Speech is not fully
  protected by 1st Amendment
• Govt can regulate false advertising, but not
  false ideas
• Govt can prohibit advertisement of illegal
  products/services
• Govt can restrict advertisements for legal
  products if it has the power to outlaw them
  altogether
• Ex.) alcohol and tobacco

14
Speech in Schools

• Teachers and students dont lose their
  constitutional right to freedom of speech when
  they enter the school
• However, the rights of students are not the same
  as the rights of adults in similar settings
• Ex.) students cannot give speeches with graphic
  sexual allusions
• School officials can decide that vulgar and lewd
  speech would undermine the schools basic
  educational mission

15
Speech in Schools

• School officials have broad power to censor
  school-sponsored expressive activities
• Ex.) Student newspapers, plays
• Censoring must be related to legitimate
  educational concerns

16
Freedom of Religion

• Establishment Clause 2 views
• Forbid creation of state-sponsored religion
• Broader restriction than just prohibition of
  religion
• Various tests and cases
• Prayer in school/moments of silence
• Money to parochial schools
• Holiday displays

17
Freedom of Religion

• Free exercise clause
• Distinction between beliefs and conduct
• Cannot violate criminal law, offend public
  morals, threaten health, safety or welfare of
  community
• Tests and cases
• Vaccination of children
• Draft objectors
• Animal sacrifice

18
Freedom of Petition

• Original context from Declaration of
  Independence
• Redress grievances against Govt
• Expanded to Grassroots lobbying
• "'grassroots lobbying' means the voluntary
  efforts of members of the general public to
  communicate their own views on an issue to
  Federal officials or to encourage other members
  of the general public to do the same."
• Content neutral
• Focus on symbolic speech

19
Freedom of Assembly

• Similar to Freedom to Petition
• Right of people to gather peacefully
• Govt has the right to maintain law and order
• Again, content must be content neutral

20
Freedom of Press

• John Zengers
• Prior Restraint
• Wartime censorship
• Confidentiality of sources
• Movie, TV, Radio
• The internet!