Chapter 16

First Amendment Freedoms

If you were to take a poll, and ask people what aspect of the American system of government they cherish above all others, most Americans would probably emphasize our tradition of rights, liberties, and freedoms. Over time we have commonly come to believe that the hallmark of a democratic system is respect for civil liberties, especially the freedom of religion, speech, press, and assembly.

As the authors point out, the framers of the U.S. Constitution had constraining the national government as one of their foremost aims. But the framers did not include in the main body of the Constitution a specific list of fundamental rights that may not be infringed upon. The concept that prevailed in the Constitutional Convention was that the institutional mechanisms of the Constitution—federalism, separation of powers, elections—would be sufficient to constrain the national government. But the popular protest over the absence of a list of fundamental human rights led to the agreement to add the Bill of Rights. In the authors' words, "In a sense, it was the people who drafted our basic charter of liberties."

The connection between civil liberties, especially the fundamental First Amendment rights, and the existence of a free society should be paramount in the instructor's coverage of this chapter. A prominent theme should be the tenuous, ambiguous nature of the practical application of First Amendment rights. The Bill of Rights itself technically applies only to the national government. It is the Fourteenth Amendment, adopted after the Civil War, and especially the interpretation of the due process clause since the 1920s, that has led to the nationalization of the Bill of Rights through "selective incorporation."

The words in the First Amendment may appear to be simple and straightforward, but as the chapter explains, there are no absolutes, and the arguments over application have been endless. Most of the disputes have not been over the desirability of the basic rights, but rather, on the application of those rights to specific cases. The U.S. Supreme Court has had to make some agonizing choices between, for example, the right to a fair trial and the freedom of the press. In most cases, there is no clear‑cut right or wrong, but rather conflicting notions of what is good.

Students may feel deluged by a barrage of terms and court cases from this chapter. Frankly, for the student to have a thorough understanding of the complexities involved in First Amendment rights, there is no avoiding the use of the terms. On the plus side, students tend to find civil liberties questions intrinsically interesting. The instructor can build on this innate interest, and at the same time drive home some important political science lessons on the nature of human rights, the inevitability of conflict, and the role of the judiciary.

I. LEARNING OBJECTIVES

1. Explain the Nationalization of the Bill of Rights through selective incorporation.

2. Define the Establishment Clause, including what it does and does not prohibit; and the prevailing doctrine.

3. Describe the three‑part test created in Lemon v. Kurtzman to determine if a statute violates the Establishment Clause, and identify and describe various tests advocated by various judges to interpret the establishment clause.

4. Explain how and when tax funds may be used to fund educational programs at church‑related schools.

5. Analyze the disputes that arise between the Establishment and Free Exercise clauses.

6. Assess how the Supreme Court altered the interpretation of the free exercise clause in the compelling interest test, Employment Division v. Smith (1990), and how the Religious Freedom Restoration Act of 1993 was explicitly designed to reverse that Court decision.

7. Distinguish among belief, speech, and action.

8. Define the following historic constitutional tests on freedom of speech issue: bad tendency test, clear and present danger test, and the preferred position doctrine.

9. Identify and define doctrines currently used by the Supreme Court to measure the limits of governmental power on freedom of speech.

10. Explain the prevailing view of the freedom of the press and the Court's position of the press's right to know.

11. Summarize how the Constitution protects other media.

12. Explain the libel guidelines established by the New York Times v. Sullivan case.

13. List the standards of obscenity as defined by the Miller decision.

14. Compare the changing social and judicial interpretations of obscenity and pornography.

15. Assess the problems involved in regulating "fighting words."

16. Describe the impact of time, place, and manner regulations on the freedom of assembly.

17. Explain the significance of “sunshine laws,” the FOIA, and the electronic FOIA.

18. Summarize legislative and judicial action toward the regulation of sedition.

19. Discuss the relationship of the Christian Coalition to a school prayer amendment.

20. Explain the constitutional implications of “hate speech on campus.”

21. Discuss how aid may be provided to children attending parochial schools.

22. Discuss the rights of “Right to Life” groups to protest abortion clinics as well as the

rights of pro-choice groups to have those clinics protected from violence or harassment.