AP GovernmentOrder & Civil Liberties: 1st Amendment

(1 & 2) Civil Liberties and Civil Rights• Civil liberties – freedoms guaranteed to individuals• “negative rights” as they are restraints on gov’t (can’t dos)• Civil rights – powers or privileges guaranteed to individuals

and protected from arbitrary removal at the hands of gov’t or individuals

• “positive rights” as they are things the gov’t must do

(3) Freedom of Religion• At the time of the Constitutional

Convention many Americans thought that gov’t could and should foster Protestantism

• Many more Americans felt this was an issue for state governments

• The 1st Amendment guarantees freedom of religion in two clauses:– Establishment clause

• The first clause of the first amendment which forbids gov’t establishment of an official religion

– Free-exercise clause• The second clause in the first

amendment which prevents the gov’t from interfering with the exercise of religion

(4) Separation of Church and State• Lemon v. Kurtzman (1971) – struck

down a state program that would have helped pay the salaries of teachers hired by parochial schools

• Set up a test (the Lemon test) to determine the constitutionality of gov’t programs under the establishment clause– Must have secular purpose– Primary purpose can’t be to

inhibit or advance religion– Must not entangle gov’t

excessively with religion

(4) Prayer in School• Engel v. Vitale (1962) – struck

down the reading of a non-denominational prayer in New York’s public schools

• In subsequent cases the Supreme Court struck down reading of the Lord’s Prayer at a public school, prayer at public school graduations, and pre-game prayer at high school football game, but after school religious activities are OK if optional clubs

(5) Publicly Funded Religious Displays• Lynch v. Donnelly (1984) – the

Court ruled that the display of religious artifacts (in this case a nativity scene) on public property does not violate the establishment clause

• The argument was that the display . . .– had a legitimate secular

purpose – the celebration of a national holiday

– did not have the primary effect of benefitting religion

– Led to no excessive entanglement of religion and gov’t

(6) Conscientious Objectors to War• The Supreme Court has avoided

absolute interpretations of the free-exercise clause

• Exempting conscientious objectors to war goes against the establishment clause by favoring some religions over others

• The Court has equated religious objection to war with any deeply held humanistic opposition to it

• The court has distinguished between religious beliefs from actions (beliefs are inviolate and beyond the reach of gov’t)

(7) Strict Scrutiny• Strict scrutiny– A standard used by the

Supreme Court in deciding if a law or policy is constitutional

– A law may be upheld only if the gov’t can demonstrate • The law is justified by a

compelling gov’t interest• The law is narrowly tailored

to achieve that interest• The law is the least

restrictive means of achieving that interest

(7) Freedom of Expression

• Free-expression clauses– The press and speech

clauses of the First Amendment

• Despite the absoluteness of the language of the First Amendment in guaranteeing freedom of press and speech, the Court has not ruled that way

(7) Freedom of Expression

• Prior restraint– Censorship before

publication, which is mostly forbidden by the Court

• Ways gov’t can regulate or punish the advocacy of ideas:– it can prove an intent to

promote lawless action and demonstrate a high probability that such action will occur

– Gov’t may impose reasonable restrictions on the means for communicating ideas

(8) Freedom of Speech• Schenck v. U.S. (1919) – upheld

convictions of those who distributed leaflets that attempted to disrupt WWI military recruitment, and set the clear and present danger test

• Clear and present danger test – a means by which the Supreme Court has distinguished between speech as the advocacy of ideas (protected speech) and speech as incitement (not protected)

• Gitlow v. New York (1925) – similar to the Schenk case, but at the state level, it for the first time applied the 1st Amendment to states by using the due process clause of the 14th Amendment

(8) Freedom of Speech

• Brandenburg v. Ohio (1969) – overturned the conviction of a KKK leader who threatened gov’t officials, because the threat was not seen as actually producing imminent lawless action

• Tinker v. Des Moines Independent County School District (1969) – overturned the suspensions of three students who wore black armbands to school to protest the Vietnam War

(8) Freedom of Press• Near v. Minnesota (1931) – struck down a

law that used prior restraint to prevent the publishing of “malicious, scandalous, and defamatory” language (prior restraint places an unacceptable burden on a free press)

• New York Times v. Sullivan (1964) – the Court ruled that the 1st Amendment protects the publication of all statements (even false ones) about public officials if the statements were not made with actual malice

• Reno v. ACLU (1997) – affirmed broad rights of free speech on the internet , arguing it was more analogous to print media than television (and thus even indecent material was protected)

• Facebook case to be decided

Comedian George Carlin afterhis arrest for his nationally

televised comedy routine “The 7 words you cannot say on TV”

(9) Order v. Free Speech

• Chaplinsky v. New Hampshire (1942) – upheld the conviction of a man who called a city marshal bad things like “damned fascist” as he used “fighting words”

• Fighting words – those that inflict injury or tend to incite an immediate disturbance of the peace

• Cohen v. California (1971) – “F___ the Draft” t-shirt OK as it wasn’t directed at any individual and was unlikely to provoke any physical action

• Public figures – people who assume roles of prominence in society or thrust themselves to the forefront of public controversy

• When evangelist Jerry Falwell was the target of vicious and degrading cartoons in Hustler magazine in 1988 the Court ruled that criticism of a public figure is protected

censor

(10) Freedom of Speech in School• Supreme Court has ruled

that schools can limit speech within the confines of the school if it creates a disturbance to learning

• It also ruled that school officials could prohibit speech outside of school if it promoted illegal drug use