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Constitutional Freedoms - 13


Section 1:    Constitutional Rights

Section 2:    Freedom of Religion

Section 3:    Freedom of Speech

Section 4: Freedom of the Press

Section 5: Freedom of Assembly


Section 1:       Constitutional Rights

·        human rights

·        incorporation


Constitutional Rights


The right to a fair trial by an impartial jury


·        The belief in human rights, or fundamental freedoms, lies at the heart of the American political system.


·        The Constitution of the United States guarantees certain basic rights in the Bill of Rights, comprised of the first 10 amendments, and in several additional amendments.


·        The Bill of Rights was not originally intended to limit state and local governments.   


·        The Supreme Court has interpreted the due process clause of the Fourteenth Amendment to apply the guarantees of the Bill of Rights to state and local governments.


·        The Supreme Court interpreted the words due process to include other protections of the Bill of Rights:

o   protection from unreasonable search and seizure

o   the right of the accused to have a lawyer

o   protection from cruel and unusual punishment


·        The process by which the Bill of Rights was extended to the states and localities is incorporation.


·        The incorporation of the Bill of Rights means that U.S. citizens in every part of the country have the same basic rights.


·        In practice, nationalization means that citizens who believe that a state or local authority has denied them their basic rights may take their case to a federal court.


Section 2:       Freedom of Religion


·        establishment clause

·        free exercise clause

·        parochial school

·        secular

·        abridge

·        precedent


The Establishment Clause


·        The first clause of the First Amendment—the establishment clause—states that “Congress shall make no law respecting an establishment of religion.”


·        The second clause—the free exercise clause—prohibits government from unduly interfering with the free exercise of religion.


·        Under the Constitution, the task of resolving controversies surrounding church-state relations falls on the Supreme Court.


·        Everson v. Board of Education involved a challenge to a New Jersey law allowing the state to pay for busing students to parochial schools—schools operated by a church or religious group.


·        The Court ruled that the law was constitutional because it benefited students rather than religion directly.


·        In Board of Education v. Allen the Court upheld state programs that provide secular, or nonreligious, textbooks to parochial schools.

·        Other important controversial cases involving religion address release times for students, school prayer, and the teaching of the theory of evolution.


The Free Exercise Clause


·        In addition to banning an established church, the First Amendment forbids laws “prohibiting the free exercise” of religion.


·        In the case of Reynolds v. United States, George Reynolds appealed his polygamy conviction, claiming that the law abridged, or limited, freedom of religion.


·        The Court upheld his conviction and established that people are not free to worship in ways that violate laws that protect the health, safety, or morals of the community.


·        The Court usually follows precedent, decisions made on the same issue in earlier cases.


Section 3:       Freedom of Speech


·        pure speech

·        symbolic speech

·        seditious speech

·        defamatory speech

·        slander

·        libel


Types of Speech


·        The First Amendment exists to protect the expression of unpopular ideas—popular ideas need little protection.


·        Pure speech is the verbal expression of thought and opinion before an audience that has chosen to listen.

·        Symbolic speech—sometimes called expressive conduct—involves the use of actions and symbols, in addition to or instead of words, to express opinions.


Regulating Speech


·        Because free speech must be balanced against the need to protect society, some restraints on pure speech do exist.


·        Congress and state legislatures have outlawed seditious speech—speech urging resistance to lawful authority or advocating the overthrow of the government.


·        When the speech in question clearly presents an immediate danger, the First Amendment does not protect it.


·        In 1925 the Court held that speech could be restricted even if it had only a tendency to lead to illegal action, establishing the “bad tendency doctrine.”


·        Developed in the 1940s, the preferred position doctrine holds that First Amendment freedoms are more fundamental than other freedoms because they provide the basis of all liberties.


Other Unprotected Speech


·        The First Amendment does not protect defamatory speech, or false speech that damages a person’s good name, character, or reputation. There are two types of defamatory speech:

o   slander, which is spoken, and

o   libel, which is written.


·        The Court has limited the right of public officials to recover damages from defamation.


·        In 1942 the Supreme Court ruled that some words are so insulting that they provoke immediate violence.



·        Such “fighting words” do not constitute protected speech.



Section 4: Freedom of the Press


·        prior restraint

·        sequester

·        gag order

·        shield laws


Prior Restraint Forbidden


·        Prior restraint is censorship of information before it is published.


·        The Supreme Court has ruled that the press may be censored in advance only in cases relating directly to national security.


·        Near v. Minnesota helped establish that free press means freedom from government censorship.


Fair Trials and Free Press


·        In Sheppard v. Maxwell the Supreme Court ruled that press coverage interfered with Sheppard’s right to a fair trial.


·        When a jury is sequestered it is kept isolated until the trial ends.


·        A gag order is an order by a judge barring the press from publishing certain types of information about a pending court case.


·        In 1979 the Supreme Court ruled that the public and press could be barred from certain pretrial hearings if the trial judge found a “reasonable probability” that publicity would harm the defendant’s right to a fair trial.


·        In three 1972 cases that were considered together, the Supreme Court said that reporters have to surrender evidence because the First Amendment does not give them special privileges.


·        To date, 30 states have passed shield laws—laws that give reporters some protection from disclosing their sources in state courts.


Free Press Issues


·        Because radio and broadcast television use public airwaves, they do not enjoy as much freedom as other press media.


·        Stations must obtain a license from the Federal Communications Commission (FCC), a government agency that regulates their actions.


·        In the 1952 case Burstyn v. Wilson, the Court held that “liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments.”


·        In Reno v. American Civil Liberties Union the Court ruled that Internet speech deserves the same level of First Amendment protection as print media.


·        After many attempts to define obscenity, the Court finally ruled in Miller v. California that local communities should set their own standards for obscenity.


·        Advertising is considered “commercial speech” and is given less protection under the First Amendment than political speech.


Section 5: Freedom of Assembly


·        picketing

·        heckler’s veto


Protecting Freedom of Assembly


·        DeJonge v. Oregon established that:

o   the right of assembly is as important as the rights of free speech and free press; and

o   the due process clause of the Fourteenth Amendment protects freedom of assembly from state and local governments.


·        Freedom of assembly includes the right to parade and demonstrate in public.


·        To provide for public order and safety, many states and cities require that groups wanting to parade or demonstrate first obtain a permit.


·        In Police Department of Chicago v. Mosley the Court voided a city law that banned all demonstrations near school buildings except in the case of labor union picketing—patrolling an establishment to convince workers and the public not to enter it.


·        The right to assemble does not allow a group to convert private property to its own use, even if the property is open to the public.


Assembly and Disorder


·        A heckler’s veto is a term used to describe when the public vetoes the free speech and assembly rights of unpopular groups by claiming that demonstrations will result in violence.


·        Feiner v. New York established that police may disperse a demonstration and limit the freedom of assembly if it threatens the peace.


Protecting Labor Picketing


·        In 1940 the Supreme Court ruled that peaceful picketing was a form of free speech.


·        In later decisions the Court severely limited this position.


Freedom of Association


·        Freedom of association means the right to join a political party, interest group, or other organization.


·        In 1937 the Supreme Court extended the right to freely assemble to protect the right of individuals to freedom of association.


·        Under the Smith Act the Supreme Court upheld convictions of 11 leaders of the American Communist Party.


·        In later cases the Court ruled that only actual preparations for the use of force against the government were in fact punishable.


Chapter Summary


The First Amendment Freedom Speech

·        Protected:

o   Pure Speech

o   Symbolic speech (in most cases)

·        Not protected:

o   seditious speech (treasonous speech)

o   defamatory speech (slander and libel)

o   “fighting words”


The First Amendment Freedom of Press

·        A free press is invaluable in a
democracy to ensure that citizens remain well informed. The press can be regulated in matters of national security or to ensure a fair trial.


The First Amendment Freedom of Assembly      

·        The right of assembly is protected but permits are often required to assemble in public places.