Chapter 5

Brandenburg v. Ohio (1969)

The court adopted a new test that replaced the "clear and present danger test." Imminent lawless action test: three-part test the government must meet if certain communication is not protected under First Amendment. Speaker subjectively intended incitement. The words used were likely to produce imminent lawless action. Words used objectively encouraged and urged incitement.

Freedom of Religion

The first right set forth in the Bill of Rights. The founding fathers wanted to guarantee every individual religious freedom. It forbids the government constraint on people's choices of beliefs. Requires that people be free to act on their beliefs. An important legal issue is to keep church and state separate. To truly accomplish this is challenging.

Freedom of Religion Establishment Clause

"Congress shall make no law respecting an establishment of religion." Cannot create a national church or proscribed religion. The government cannot show preference to any particular religion.

Freedom of Religion Free Exercise Clause

"Congress shall make no law...prohibiting the free exercise [of religion]" It involves both the freedom to believe and the freedom to act. Courts have had to balance the requirements of the free exercise clause against society's legal, social, and religious needs.

Freedom of Speech Constitutional rights are NOT absolute.

There are reasonable limits, when the government has a legitimate interest, which are placed on where things can be said and, on what can be said. Mostly occur in time of war Espionage Act (1917): made illegal interference with recruiting or drafting soldiers or any act that adversely affected military moral. Schenck v. United States (1919): Schenck was charged with espionage for distributing flyers that encouraged young men to resist the draft.

Freedom of Association

Unenumerated but fundamental freedom There is also a right not to associate

Clear and probable danger test

Whether the gravity of the evil discounted by its improbability justifies an invasion of free speech necessary to avoid any danger.

The Right to Peaceful Assembly

Combined with freedom of speech and the Fourth Amendment, people have an expectation they can gather to interact, speak amongst themselves, and share ideas.

Freedom of Speech Constitutional rights can be applied differently based on one's profession. As public employees, law enforcement officers' speech is protected under the First Amendment only if it is:

matter of public concern unrelated to employment

Freedom of Religion A challenge to the Establishment Clause must meet three standards:

Have a primary secular purpose Have a principle effect that neither advances nor inhibits religion and Not generate excessive entanglement between government and religion, as set forth in Lemon v. Kurtzman

Freedom of Speech Part 1

Is the liberty to speak openly without fear of government restraint. Closely linked to the freedom of the press because this freedom includes both the right to speak and the right to be heard. Commonly called freedom of expression.

R.A.V. v. St. Paul, 505 U.S. 377 (1992)

Issue: A teenager is arrested for burning a cross in yard of a black family. Is this protected speech? Holding: Yes. Supreme Court held ordinance against cross burning was unconstitutional because it prohibits permitted speech solely on the basis of the subjects the speech addresses.

Miller v. California , 413 U.S. 15 (1973)

Issue: Can state statutes regulate obscene material without limit? Holding: No. Court clarified the standards to define obscenity by establishing a three-part test: Whether the average person, applying contemporary community standards, finds the dominant theme of the material, taken as a whole, appeals to prurient interest, that is, having a tendency to excite lustful thoughts.

Freedom of Speech Strict Scrutiny

Legal standard applied to due process analysis of fundamental rights. The state must establish that it has a compelling government interest that justifies the law in question. The law must be narrowly tailored to fit that interest. High standard and difficult to defend.

First Amendment Rights of Prisoners

Prisoners are using "due process revolution" to have courts rule on First Amendment issues related to correctional clients. The courts have used the Rational Basis test to uphold prison regulations that are "reasonably related to legitimate penological interests."

Freedom of the Press Is related to freedom of speech because speech is not considered only spoken words, but any means of conveying information. Right to publish is not absolute. Government has restricted the right to publish in two ways:

Publishing certain materials (prior restraint). Punishing those who publish matter considered seditious, libelous, or obscene.

Freedom of Speech Part 2

Pure speech are verbal and written methods of communicating or expressing a message Protected by First Amendment, but can be restricted by government in certain cases (e.g., libel and slander laws) Examples include delivering a talk before an audience, authoring a book Symbolic speech is a form of speech that expresses an idea or emotion without the use of words. Falls within the protection of the First Amendment. Examples include flag burning, cross burning, nude dancing, and yard signs

Introduction

The First Amendment "prohibits Congress from making any laws that restrict freedom of religion, freedom of speech, freedom of the press or the right to gather or assemble peaceably and to request the government to respond to complaints from its citizens."

Freedom of Speech

The First Amendment provides citizens with the right to record an officer performing official duties in a public place.

Issues where the courts have ruled include:

censorship of mail association/expression within the institution religion appearance visitation rights