First Amendment: Freedom of Speech and Religion

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First Amendment
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“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, speech, assembly of the press, and right to petition – written by James Madison – Came from the oppression and limitation of the past
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Freedom of Religion
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– Prevents government from establishing an official religion – We can choose to participate or not participate
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First Amendment- First Principles
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1. Affirms freedom of the individual 2. Free expression is foundation of democracy 3. Tells government to “keep it’s hands off” our religion, ideas, and ability to express ourselves 4. Other people have rights, too (equality) 5. When rights collide, the government must balance those rights (why we have a judicial system) 6. Helps us make choices (exposure)
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Freedom of the Press
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– government cannot control what is printed in newspapers and books, broadcast on TV or radio or offered online
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Freedom of Assembly
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– citizens can come together in public and private gatherings
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Right to Petition
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– citizens can ask for changes in the government Ex. collecting signatures on a petition, write, call, e-mail, join bigger groups that lobby the government
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Freedom of Speech
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– government cannot stop us from saying what we think – have right to criticize and share opinions with others * are some exceptions
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Market place of ideas
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– People can exchange their ideas freely – ideas don’t have to be popular or liked (exchange of opinions for the furthering of intelligence) – are boundaries in the market
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FoS Cases
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– people aren’t always arrested for what they say, but their conduct when doing so – interrupts normal civilian life
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Fully protected speech
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– everything not in the unprotected or limited protection category
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Speech with limited protection
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– vulgar speech and commercial speech
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Unprotected speech
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– obscenity, child pornography, incitement to riot, fighting words, threats – not essential to market place of ideas (no benefit)
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Forms of speech
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– art, music, theater, dance, entertainment, spoken, written, symbolic – also choose not to speak (WV State Board of Education V. Barnette)
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Reasonable, prudent person test
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– test used by the Court to try and determine the verdict of a case – A reasonable, prudent person (majority) would think …. of ….
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Imminent lawless action
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– helps define the limits of free speech – speech not protected if intends to incite a violation of the law that is both imminent and likely – likely to incite or produce such action – Brandenburg V. Ohio (1969)
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Fighting words
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– words spoken face-to-face that are likely to cause an imminent breach of the peace between the speaker and listener (verbal slap) – clear and present danger, balancing test, incitement test – don’t convey an idea
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Clear and present danger
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– did clear and present danger of unlawful action exist? – didn’t have to occur immediately after speech – If yes, then speech not protected
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Balancing test
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– downplayed probability of act – balances speaker’s rights and harm speaker’s words could cause
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Incitement test
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– speaker urges crowd to take unlawful action – imminent lawless action – Will audience respond with violence? – action happens within a short period of time – gives greater protection to speaker
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Hate Speech
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– speech motivated by bigotry and racism – like fighting words – protecting victims would only make the government look like they are censoring and promoting a certain viewpoint
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Defamation
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– false expression about a person that damages that person’s reputation – slander and libel
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Slander
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– spoken defamation
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Libel
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– written defamation – New York Times V. Sullivan
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Commercial speech
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– speech used to advertise certain things (prescription drugs, food, clothing, services, etc…) – government can ban commercial speech that is misleading, false, or about illegal products
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Miller Test
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– test used to figure out if something is obscene or not – Miller V. California (1973) 1. “Community standards” – appeals to prurient interests 2. Does it depict sexual conduct in any way? 3. Lacks value (artistic, literal, political) – answer 3 yes = obscene – applies only to adult conduct – under 18 = pornography (federal law and federal prison)
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Chaplinsky V. New Hampshire
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Date: 1942 Facts: Jehova’s witness adressed a police officer using curse words, Chaplinsky arrested for breach of peace LQ: Was Chaplinsky’s speech protected under the 1st Amendment? CD: No, he used fighting words
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Sustained the conviction
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– Supreme Court agrees with the lower court
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Hustler Magazine V. Falwell
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Date: 1988 Facts: parody of advertisement promoting a type of alcoholic beverage; well-known minister was accused of having a drunken relationship with his mother; at bottom of article, magazine said that the advertisement was not real; Falwell sues for libel and emotional damage LQ: Does the 1st Amendment’s protection extend to making of patently offensive statements about public figures, resulting in their suffering emotional distress? CD: The magazine’s speech was protected, and although it may have caused harm, the accusations were stated to be false
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National Socialist Part V. Skokie
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Date: 1970-76 Facts: Members of the Nazi Party of America wanted o march in Skokie Illinois, a predominately Jewish suburb; march in uniform and announce their support for white supremacy and anti-sematic polices; not allowed to march LQ: Did the Illinois supreme court improperly deny the Nazi party’s request for a stay of the district court’s junction? CD: Yes
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R.A.V. V. City of St. Paul
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Date: 1992 Facts: RAV burnt a cross in the yard of a black family; arrested because ordinance which stated acts “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender” LQ: Was the ordinance overly broad? CD: Yes, it “prohibits otherwise permitted speech based solely on the subjects the speech addresses”
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Virginia V. Black
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Date: 2003 Facts: Two people burnt a cross and were caught under a Virginia statute LQ: Can a state prohibit cross burning carried out with the intent to intimidate? CD: No, because some people will burn crosses for idealogical reasons and is hard to tell why someone burns a cross.
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Matthew Shepard case
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Facts: Shepard was openly gay and went to a bar; Henderson and McKinney lie to Shepard about their sexuality; kidnap Shepard and torture him, later Shepard’s barely alive body is found and he dies in a hospital – Wyoming had previously voted against hate crime legislation because it would give special rights to homosexuals
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Snyder V. Phelps
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Date: 2011 Facts: Members of the Westboro Baptist Church picket at a fallen soldier’s funeral; father sues for emotional damage LQ: Is the WBC’s picketing protected? CD: Yes
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Brandenbug V. Ohio
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Date: 1969 Facts: Member of KKK; rude during speech (deport everyone who isn’t American); Ohio ruled he couldn’t do that LQ: Was Brandenburg’s right to free speech violated? CD: Yes
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Schenck V. United States
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Date: 1918 Facts: Boys shouldn’t sign up to be drafted; communist and don’t sign up for the selected services; peacefully petition the government; espionage act LQ: Can he say that because of the free speech clause? CD: Not allowed to say that during wartime; paranoia between communists, socialists, and anarchists
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Debs V. United States
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Date: 1918 Facts: Leader of socialists party protests involvement in WWI; praises people who didn’t sign up and don’t fight in the war LQ: Espionage act and speech violated? CD: No
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Abrams V. United States
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Date: 1919 Facts: Defendants printed two papers and threw from the window, denounced US efforts to impede Russia and sending troops LQ: Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment? CD: No
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Gitlow V. New York
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Date: 1922 Facts: Gitlow hands out pamphlets calling for communism LQ: Is the NY law (punishes advocacy to overthrow the government by force) an unconstitutional violation of the free speech of the first amendment? CD: Yes
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Whitney V. California
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Date: 1925 Facts: Whitney member of Communist Labor party in CA, prosecuted under California syndicalism act (change how government is run) during speech LQ: Did it violate the 1st or 14th amendments? CD: No, free speech isn’t an absolute right
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Dennis V. United States
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Date: 1948 Facts: Knowingly conspire and teach overthrow of US government LQ: Did the Smith act’s restrictions on speech violate the first amendment? CD: Did not inherently violate it
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Public person
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– a person who enjoys the media’s attention and has put his or herself in the spotlight, then you gave less privacy rights than people living their lives quietly
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Public concern
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– speech that relates to political or social concern to the community – is there a valid reason for the public to be interested?
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New York Times V. Sullivan
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Date: 1963 Facts: Ad published in the NYT said that MLK’s arrest was actually an attempt to destroy MLK’s campaign. Montgomery city commissioner (Sullivan) filed libel action against the newspaper and four black ministers (endorsers). Alabama courts give Sullivan $500,000 for case, b/c Sullivan did not have to prove he had been harmed LQ: Did Alabama’s libel law infringe on the First Amendment’s freedom of speech and freedom of press? CD: First amendment protects publication of all statements, true or false, when they are made without malice
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Gertz V. Rovert Welch, Inc.
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Date: 1970-79 Facts: Gertz attorney hired by family trying to have a civil suit, officer had shot and killed son (convicted of murder), Gertz accused of being communist LQ: : Does the First amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public person? CD: Different since not a public person, Gertz wins
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Dunn and Bradstreet V. Greenmoss
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Date: 1980-89 Facts: Credit repot agency, released statement saying Greenmoss filed for bankruptcy (wrong), changed it but it didn’t go to everyone LQ: If a trial judge does not instruct the jury to only award punitive damages caused by intentional slander or reckless conduct, can a jury still award punitive damages to a plaintiff defamed by private speech? CD: Yes
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Symbolic speech
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– conduct that expresses an idea Ex. sit-ins, flag waving, demonstrations, wearing certain items, pledge – Did the speaker intend to convey a certain message? – Manner, time, what is beind done
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Tinker V. Des Moines
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– Mary Beth Tinker, brother, and friend silently protest US participation the the Vietnam war (wear black armbands) – School had policy that students couldn’t wear clothing implying political ideas (suspended) – family brings suit against the school – Tinker wins, student’s still have rights even on school property
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Texas V. Johnson
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Facts: Johnson burnt flag in front of city hall as protest to Reagan administration policies LQ: Is flag burning protected symbolic speech? CD: Yes, this was
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Cohen V. California
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Facts: Cohen wears shirt against the Vietnam war, had explicit words on it LQ: Did California’s statute, prohibiting the display of offensive messages, violate freedom of expression as protected by the First amendment? CD: Cohen can wear the shirt, because it doesn’t incite violence

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