Chapter 5 - The First Amendment

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© 2015 Cengage Learning
Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver
Chapter 5
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.”

 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.
o Requires that people be free to act on their beliefs.
 An important legal issue is to keep church and state
separate.
o To truly accomplish this is challenging.

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

 Facts: Required all freshmen and sophomores to
complete 6 units of military training to attain full academic
standing as a junior.
 Issues: Can students be compelled to take military
courses if they object on religious grounds?
 Holding: Yes.
 Rationale: States are permitted to, and have an interest
in, creating a citizenry capable of serving in the country's
military. Attendance in the University of California is a
privilege in which the students want to partake.

 Facts: A New Jersey law allowed reimbursements of money to
parents who sent their children to school on buses operated by
the public transportation system. Children who attended
Catholic schools also qualified for this transportation subsidy.
 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: Services like bussing and police and fire protection
for parochial schools are "separate and so indisputably marked
off from the religious function" that for the state to provide them
would not violate the First Amendment.

 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, as set
forth in Lemon v. Kurtzman

 “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.

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, "Live Free or Die," and
make it a misdemeanor to obscure the motto. The
appellants blackened out the motto for moral reasons.
 Issues: Can the state punish these citizens?
 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 .

 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 the freedom of
expression.

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

 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.
o 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)
o Was charged with espionage for distributing flyers that encouraged
young men to resist the draft.
o This is an example when the good of the greater whole outweighs
the rights of the individual.

 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.
 Brandenburg v. Ohio (1969)
o The court adopted a new test that replaced the “clear and
present danger test”.
o Imminent lawless action test- 3 part test the government
must meet if certain communication is not protected under 1st
Amendment.
1. Speaker subjectively intended incitement.
2. The words used were likely to produce imminent lawless action.
3. Words used by the speaker objectively encouraged and urged
incitement.

 Constitutional rights can be applied
differently based on one’s profession.
o As public employees, law enforcement
officers’ speech is protected under the
First Amendment only if it is:
1) matter of public concern
2) unrelated to employment

 Symbolic speech is
o A form of speech that expresses an idea or emotion
without the use of words.
o Falls within the protection of the First Amendment.
o Examples of symbolic speech include:
• Flag burning
• Cross Burning
• Nude Dancing
• Yard Signs

 Facts: Nude dancers arrested for violating state
public decency law.
 Issues: Was requiring pasties and g-strings a
violation of First Amendment artistic freedom?
 Holding: No.
 Rationale: The dancing did enjoy some marginal
First Amendment protection but the state’s
interest in promoting order and morality allowed it
to make a modest imposition to achieve its
purpose.

 Facts: Teenager arrested for burning a cross in
yard of a black family.
 Issues: Is this protected speech?
 Holding: Yes.
 Rationale: Supreme Court held ordinance was
unconstitutional because it prohibits permitted
speech solely on the basis of the subjects the
speech addresses.

 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
2 ways:
1. Publishing certain materials (prior restraint).
2. Punishing those who publish matter considered
seditious, libelous or obscene.

 Facts: The Defendant was convicted under the California
Penal Code for mailing advertisements for “adult” material
to non-soliciting recipients.
 Issues: Can state statutes may regulate obscene material
without limit?
 Holding: No.
 Rationale: Court clarified thee standards to define
obscenity by establishing a 3 part test:
o Whether the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole,
appeals to prurient interest, that is, having a tendency to excite
lustful thoughts.

 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.”
 Issues where the courts have ruled include:
o censorship of mail
o expression within the institution
o association within the institution
o religion
o appearance
o visitation rights

Chapter 5 - The First Amendment

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