Key Concepts

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CHAPTER 16
FIRST AMENDMENT FREEDOMS
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Key Concepts

• Civil Liberties
• Civil Rights
• Rights of persons accused of crimes
• Political rights
• Legal privileges
• Common law
• Civil law

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Rights in the Original Constitution

• Habeus corpus
• No bills of attainder
• No ex post facto laws
• No titles of nobility
• Trial by jury in national courts
• Protection for citizens as they move from one
  state to another, including the right to travel
• Protection against using crime of treason to
  restrict other activities limitation on
  punishment for treason
• Guarantee that each state has a republican form
  of government
• No religious test oaths as a condition of holding
  federal office

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Foremost Constitutional Rights

• Writ of habeas corpus
• Ex post facto
• Bills of attainder

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Incorporation

• Bill of Rights-original purpose
• 14th Amendment 1866
• Due Process Clause life,liberty, and property
• Supreme Court Refused to interpret amendment this
  way.
• 1925 Gitlow v. New York, Freedom of Speech is a
  fundamental personal right
• From 30s on to the 60s selective
  incorporation
• Today all provisions of the Bill of rts except
• 2nd, 3rd, part of 5th, 7th, 9th, and 10th

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TABLE 16-1 Selective Incorporation and the
Application of the Bill of Rights to the States
Right Amendment Year Public use
and just compensation for the taking
5 1897 Of private property by the
government. Freedom of speech 1
1925 Freedom of the press
1 1931 Fair trial
6 1932 Freedom of religion
1 1934 Freedom of assembly
1 1937
Table 16-1 (p. 408) Selective Incorporation and
the Application of the Bill of Rights to the
States
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Right Amendment Year Free exercise
of religion 1
1940 Separation of religion and government
1 1947 Right to a public
trial 6 1948 Right
against unreasonable searches and seizures
4 1949 Freedom of association
1 1958 Exclusionary
rule 4 1961 Ban
against cruel and unusual punishment
8 1962 Right to counsel in felony
case 6 1963
Table 16-1 (cont.) Selective Incorporation and
the Application of the Bill of Rights to the
States
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Right Amendment Year Right against
self-incrimination 5
1964 Right to confront witness 6
1965 Right of privacy 1, 3, 4, 5,
9 1965 Right to an impartial jury
6 1966 Right to a speedy
trial and compulsory process 6
1967 For obtaining witnesses Right to a jury
trial in nonpetty cases 6
1968 Protection against double jeopardy
5 1969
Table 16-1 (p. 408) Selective Incorporation and
the Application of the Bill of Rights to the
States
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Free Exercise Clause state cannot interfere or
impose any burdens on religion what happens
when religiously sanctioned activity violates the
law? the Mormons and polygamy (Reynolds v. the
U.S. 1878) the Amish and compulsory
education Native Americans and
peyote mandatory flag salutes (West Virginia v.
Barnette, 1943) conscientious objection to
military service Seeger v. the United States,
1865 Welsh v. the United States,
1970 balancing "compelling state interests"
with religious liberty was thrown out in
favor of as long as the law is generally
applicable and does not single out and ban
religious practices the law may be applied to
conduct even if it burdens a particular
religious practice
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Freedom of Religion The Establishment
Clause no governmental "establishment " of
religion "wall of separation between church and
state" (Jefferson) what constitutes
governmental aid to religion? statutory
aid prayer in school Engel v. Vitale
(1962) Wallace v. Jaffree (1985) Abington
School District v. Schempp (1963) "equal
time for creationism" laws Epperson v. Arkansas
(1968) religious holidays mandatory Sunday
closing laws financial aid public funded
transportation to religious school ( Everson
v. Board of Education 1947) tax exempt
status of churches public funded nativity
scenes (Lynch v. Donally, 1984) three
part test to determine constitutionality
governmental aid to
religion- Lemon v. Kurtzman(1971) LEMON
TEST (1) purpose of legislation must be
secular (2) its primary effect must neither
advance nor inhibit religion (3) must avoid
excessive government entanglement (4) example-
Lee v. Weisman(1992) no prayer at graduation
ceremonies
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Religious Tests

• Wall of Separation
• Lemon Test
• Endorsement Test (OConnor)
• Non Preferentialist Test (Scalia, Thomas,
  Rehnquist)
• Strict Separation (Breyer, Ginsberg, Souter,
  Stevens)

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Freedom of Speech--Historic Constitutional Tests

• Bad Tendency test (Common Law)
• Clear and Present Danger test(Schenck)
• Preferred position test should rarely if ever
  be curtailed
• Imminent Lawless Action test

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Unprotected Speech

• Libel (NY Times v. Sullivan)
• Public and private persons
• Must prove actual malice
• Obscenity (Miller v. California)
• Fighting words
• Commercial speech

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Protected Speech

• Prior restraint
• Void for vagueness (laws must not be vague)
• Least drastic means (laws may not be passed if
  other means available)
• Content and viewpoint neutrality ( types of laws
  acceptable)

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Freedom of the Press

• Confidentiality and withhold sources
• Right to know
• Sunshine laws
• Freedom of Information Act
• Free Press versus Fair Trials
• Handbills, sound trucks, and billboard
• Mail
• Motions pictures and plays
• Broadcast and cable communications
• Telecommunications and the Internet
• FCC
• Reno v. ACLU 1996-struck down part of the act
  that said it was illegal to send obscene and
  indecent messages to anyone under 18.
• Child Online Protection Act 1998 -crime for a
  commercial web site to make available to anyone
  under 17 sexually explicit material. 2004 Court
  said it was unenforceable.

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Freedom of Assembly

• Public forums
• Limited public forums
• Nonpublic forums