Chapter 16

First Amendment Freedoms

Chapter Outline

I. Introduction/Bill of Rights and the States

A. The writ of habeas corpus

1. Definition—directs any official having a person in custody to produce the prisoner in court

and to explain to the judge why the prisoner is being held

2. Controversy exists between those who believe federal judges should be given wide discretion to issue

writs of habeas corpus to protect constitutional rights and those who believe the writ has been abused

state prisoners

3. The Supreme Court has severely restricted the use of these writs by federal judges

4. The 1996 Antiterrorism and Effective Death Penalty Act restricts habeas corpus

B. Ex post facto laws and bills of attainder

1. The Constitution forbids both the national and state governments from passing ex post facto laws

and enacting bills of attainder

2. Bill of attainder is a legislative act inflicting punishment without judicial trial on named individuals

or members of a specified group

C Selective incorporation (note 1925 Gitlow v. New York decision)

1. The Supreme Court selectively incorporated the Bill of Rights into the due process clause

2. Today, only exceptions are Amendments 2, 3, 7, 10, and grand jury requirements of the Fifth

Amendment

3. Distinction between provisions of the Bill of Rights that are incorporated into the Fourteenth

Amendment from those that are not

4. The Supreme Court has found constitutional protection for other fundamental rights

D New judicial federalism (U.S. Constitution should set minimum, not maximum standards)

1. Renewal of interest in state constitutions as independent sources of additional protection for

civil liberties and civil rights

2. Argue for state courts to provide more protection from their bill of rights

II. Freedom of Religion

A. The establishment clause

1. Prevailing doctrine stems from Everson v. Board of Education (1947), that created a strict

separation of church and state

2. Lemon v. Kurtzman (1971): Lemon test is a three-part test supported by justices John Paul

Stevens, Ruth Bader Ginsburg, and Stephen Breyer

3. Endorsement test supported by Justice Sandra Day O’Connor

4. Nonpreferential test supported by Chief Justice William Rehnquist and Justices Antonin

Scalia and Clarence Thomas

5. Strict separation supported by Souter, Stevens, Ginsburg, Breyer

6 What the establishment clause forbids (schools cannot encourage or sponsor)

B. Parochial school aid (“A Closer Look” insert)

1. Permissible and impermissible public aid to religion using the Lemon test

2. Aid must have secular purpose

3. Tax funds cannot be used in religious schools to pay teachers

C. The Free exercise clause

1. Right to hold any or no religious belief is one of our few absolute rights

a. Tension exists between the two religion clauses

b. The Supreme Court applied the compelling interest test prior to 1990

c. In 1990, the Rehnquist Court discarded the compelling interest test except as it applied to

laws denying people unemployment compensation; in Employment Division v. Smith

(1990), the Court ruled that a government no longer has to show a compelling interest in

order to apply its general laws to religious practices

D. The Religious Freedom Restoration Act of 1993

1. Designed to restore the use of the compelling interest test

2. Exempts people from laws and governmental actions that burden their religious freedom

3. It is unclear whether Congress has the authority to diminish the power of state governments

and restrict their power to legislate

4. RFRA ruled unconstitutional

5. Case of University of Virginia and Christian “Wide Awake” student newspaper

III. Free speech and free people

A. Distinction among belief, speech, and action

B. The Act of Judging: Line-Drawing—Free speech questions require judges to weigh many

Factors such as motives of government, what was said, where was it said, how was it said?

B. Historic constitutional tests

1. The bad tendency test (rooted in English common law)

a. Judges presumed it was reasonable to ban corrupting or illegal speech

b. Has been abandoned—too broad, runs counter to First Amendment;

c. Some legislators still hold position; college students may also be supportive

2. The clear and present danger test (Schenck v. United States, 1919)

a. No government should be allowed to restrict any particular speech unless it can

demonstrate that there is such a close connection between the speech and an illegal action

that the speech itself takes on the character of the action

b. Yelling “fire” in a crowded theater when there is no fire

3. The preferred position doctrine

a. Freedom of expression has a preferred position in our constitutional hierarchy; judges have

a special duty to protect these freedoms and should be most skeptical about laws

trespassing on them

IV. Nonprotected and protected speech

A. Libel (written defamation of character; see Sedition Act of 1789; Smith Act of 1940)

1. Sedition is defined as attempting to overthrow the government by force or to interrupt its

activities by violence

2. 1798 sedition law, while allowing the jury to decide truth of statements, led to popular

reaction against Federalists and their subsequent political defeat

3. Smith Act forbids persons to advocate overthrow of the government with the intent to bring it

about, to distribute matter teaching or advising the overthrow of government by violence, and

to organize knowingly any group having such purposes

4. In Dennis v. United States (1950), the Court ruled that the Smith Act could apply to

Communist Party leaders

5. Seditious speech, if narrowly defined to cover only the advocacy of immediate and concrete

acts of violence, is not constitutionally protected

6. In New York Times v. Sullivan, the Supreme Court established the guidelines for libel cases

a. Public officials and public figures must first prove "actual malice"

b. State laws may allow private persons to collect damages without proving actual malice

B. Obscenity and Pornography

1. Miller v. California (1973) gave constitutional definition of obscenity

2. Obscenity not entitled to constitutional protection

3. X-rated movies are entitled to some constitutional protection, but less protection than political

speech, and they are subject to greater governmental regulation

4. Sexually explicit materials about or aimed at minors are not protected by the First

Amendment

C. Pornography

1. Advocates of regulation of pornography argue that just as sexually explicit materials about

minors are not entitled to First Amendment protection, so should there be no such protection

for pornographic materials

2. Pressure for regulation comes mainly from political/religious conservatives; some feminists have

joined in, arguing that pornography is degrading/perpetuates sexual discrimination/violence

D. Fighting words

1. Governments may punish certain well-defined and narrowly limited classes of speech that by

their very utterance inflict injury or tend to incite an immediate breach of peace

E. Commercial speech (ads, commercials)—Court recently given greater protection to this speech

such as in 44 Liquormart Inc. v. Rhode Island (1996) where Court struck down a law banning

the advertising of the price of alcoholic drinks

F. Protected speech

1. Prior restraint

a. Judges are most suspicious of restraints prior to publication

2. Void for Vagueness

a. Law must not allow those who administer them so much discretion that they could

discriminate against those whose views they dislike

b. Law must not be so vague that people are afraid to exercise protected freedoms

3. Least drastic means

a. Legislature may not pass a law which violates First Amendment if other ways to solve the

problem exist

4. Content and viewpoint neutrality—laws that apply to all kinds of speech and all views less

likely to be struck down (see St. Paul Minnesota example in text)

V. Freedom of the press

A. Does the press have the right to withhold information? (some states have passed shield laws)

B. Does the press have the right to know?

1. Courts have protected press's right to publish, but have not acknowledged a "right to know"

a. Sunshine laws require "open meetings" of public agencies

C. The 1966 Freedom of Information Act

1. Liberalized access to non-classified government records

2. More than 250,000 people have requested information (90% granted)

3. Clinton in 1995—declassified government documents after 25 years

4. Electronic Freedom of Information Act of 1996 requires most federal agencies to put their files

online and to establish an index of their records—NASA a leader (UFO documents!)

D. Free press versus fair trials

1. Supreme Court has ordered new trials, or instructed judges to impose sanctions on policed

prosecutors due to inflammatory publicity

2. Judges in some states have prohibited TV coverage

VI. Other media and communications

A. The mails

1. Government censorship of mail is unconstitutional

2. Household censorship of mail is constitutional

B. Motion pictures and plays

1. Laws calling for submission of films to a government review board are constitutional only if

there is a prompt judicial hearing; the burden is on the government to prove that the film is

obscene

2. Live performances are entitled to constitutional protection

C. Handbills, sound trucks, and billboards

1. Forms are entitled to constitutional protection

D. Broadcast and Cable Communications

1. Mass media broadcasting receives least First Amendment protection also regulated by FCC

2. FCC can impose sanctions for "filthy language" or prevent license renewal for broadcasting

not in the public interest (Infinity Broadcasting and Howard Stern)

3. Telecommunications Act of 1996 allows phone companies, broadcasters, and cable TV to

compete with one another; Bill calls for new regulations, outlawing the transmission of "indecent

material”by requiring "V-chips" on new television sets

4. The Supreme Court has decided that cable television is entitled to less constitutional

protection than newspapers but more than broadcast television; the Court, however, is not in

agreement on precisely how that protection applies

5. Cable TV stations must carry signals of local broadcast TV stations—see 2000 Court ruling in

U.S v. Playboy Entertainment Group.

F. Telecommunications and the Internet

1. Congress struggling with issues raided by cyberspace communications

2. Court distinguished between limited ban on radio/TV messages vs. phones, cable, Internet

3. See Reno v. ACLU regarding Communications Decency Act of 1996—Court struck down

provisions of the Communications Decency Act of 1996 that had made it a crime to send

obscene messages to anyone under 18 years of age (Internet unique, less intrusive)

VII. Freedom of Assembly

A. Freedom of assembly (“Million Youth March” example)

1. Police must have right to order groups to disperse (public order)

2. Issue of the “heckler’s veto”?

B. Public forums and time, place, and manner regulations

1. Governments may not specify what can or cannot be said, but they can make reasonable time,

place, and manner regulations for the holdings of assemblies, protests, or gatherings

2. The extent to which governments may limit access depends on the kind of forums involved:

a. Public forums (historically associated with free exercise such as streets, parks)

b. Limited public forums (public property such as city hall of schools after-hours)

c. Nonpublic forums (libraries, courthouses, government offices)—can not interfere with

normal activities in order to stage a public protest

3. Civil disobedience is not a protected right

4. Federal crime to obstruct abortion clinic activity