THE FIRST AMENDMENT PART I Constitutional Law

1st Amendment

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of Religion

 The first right set forth in the Bill of Rights.

 It forbids government constraint on people’s choices of beliefs

 An important legal issue is to keep church and state separate.

Establishment Clause

 “Congress shall make no law respecting an establishment of religion.”

 The government cannot show preference to any particular religion.

Everson v. Board of Education (1947)

 Facts: After repealing a former ban, a New Jersey law authorized payment by local school boards of the costs of transportation to and from schools – including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion through the mechanism of reimbursing parents and students for costs incurred as a result of attending religious schools violated both the New Jersey state constitution and the First Amendment.

 Issues: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?

 Holding: No.

 Rationale

How to Challenge the Establishment Clause?

 Must meet three standards:

1. Have a primary secular purpose

2. Have a principle effect that neither advances nor inhibits religion and

3. Not generate excessive entanglement between government and 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

Wooley v. Maynard , 430 U.S. 705 (1977)

 Facts: New Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto. The Maynards, Jehovah's Witnesses, viewed the motto as repugnant to their moral, religious, and political beliefs, and for this reason they covered up the motto on the license plates. On November 27, 1974, Maynard was issued a citation.

 Issues: Can the state constitutionally require citizens to display the state motto upon their vehicle license plates?

 Holding: No.

 Rationale: Forcing an individual, as part of his daily life — indeed, constantly while his automobile is in public view — to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, invades the sphere of intellect and spirit which it is the purpose of the First Amendment.

 Dissent

Freedom of Speech

 The liberty to speak openly without fear of government restraint.

 Closely linked to the freedom of the press

 Commonly called the freedom of expression.

Freedom of Speech Legal Standards

 Strict Scrutiny

 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.

Restrictions on Freedom of Speech

 Constitutional rights are NOT absolute.

 There are reasonable limits which are placed on where things can be said and on what can be said.

Schenck v. United States (1919)

 Facts: Members of the Socialist Party of Philadelphia authorized and oversaw the printing and mailing of 15k fliers to men encouraging resistance to the draft.

 Issue: Should the defendants be prosecuted for creating a clear and present danger that they will bring about substantive evils?

 Holding: Yes.

 Rationale: Times of war call for greater restrictions on free speech because of the increased dangers.

FIRST AMENDMENT PART II

Constitutional Law

Brandenburg v. Ohio (1969)

Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Issue: Did Ohio's law prohibiting public speech that advocates various illegal activities violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Holding: Yes

Rationale: The court adopted a new test that replaced the “clear and present danger test”.

 Imminent lawless action test

First Amendment Expression Rights of Public Employees

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 under certain conditions

Questions for Consideration on Public Employee Speech

1. Is the employee on the government payroll?

2. Has the employee been punished for his or her speech in a non-trivial way, such as being discharged, demoted, or transferred?

3. Did the expression for which the employee was punished relate to a matter of "public concern?"

4. If the government says that it had additional reasons for punishing the employee that do not relate to the employee's expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered?

5. If the employee's speech did relate to a matter of public concern, is the government's ability to "efficiently provide services" nonetheless adversely affected in a substantial way, or does the speech negatively reflect on the employee's job performance?

6. Was the employee punished for speech that was pursuant to his or her duties as an employee?

Symbolic Speech

 A form of speech that expresses an idea or emotion without the use of words.

 Falls within the protection of the First Amendment

 Examples of symbolic speech

Barnes v. Glen Theatre, 501 U.S. 560 (1991)

 Facts: Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute.

 Issues: Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee?

 Holding: No, public indecency statutes like this one are justified.

 Rationale: Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality."

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

 Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge.

 Issues: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?

 Holding: Yes, the ordinance is invalid on its face.

 Rationale: The ordinance "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards.

Freedom of the Press

 Is related to freedom of speech because speech is not considered only spoken words, but any means of conveying information.

 Government has the right to restrict publishing

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

Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Issues: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Holding: No, Obscene materials are not protected by the First Amendment, but the definition of "obscene material" is lessened.

Rationale: The Court held that obscene materials did not enjoy First Amendment protection, but modified the test for obscenity

First Amendment Rights of Prisoners

 Prisoners are using this “due process revolution” to have the 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.”

 Courts have ruled on this issue in a variety of areas

 Orange is the New Black Cindy Converts

Questions for Analysis – Rights of Prisoners

1. Is the regulation reasonably related to a legitimate, neutral government interest?

2. Does the regulation leave open another way for you to exercise your constitutional rights?

3. How does the issue impact other prisoners, prison guards or officials and prison resources?

4. Are there obvious, easy alternatives to the regulation that would not restrict your right to free expression?

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