Download Chapter 16: First Amendment Freedoms

Chapter 16: First Amendment Freedoms - AP US Government & Politics - Mr. Tumino
INTRODUCTION: The First Amendment, by general agreement, is the most sweeping part of the Bill of Rights. In a
single sentence, James Madison defined the rights that were placed beyond the reach of the new Congress: the
establishment of a national church, freedom of religious belief, a free press, free speech, and rights of assembly and
petition. Although at the outset these prohibitions did not automatically apply to the individual states, through Supreme
Court interpretation and action of the individual state legislatures, the Bill of Rights was extended to the states as well.
Nine of the original thirteen colonies had established churches, taxation for their support, and membership as a
requirement for office-holding. Thomas Jefferson, who played an active role in instituting Virginia's establishment
clause, had inscribed on his tombstone: “Here lies buried Thomas Jefferson, author of the American Declaration of
Independence, the Virginia statute for religious freedom, and founder of the University of Virginia.” Other rights
embedded in the First Amendment also had been subject to controversy in the Mother Country and the colonies for
centuries. They were established as fundamental freedoms by the stroke of a quill pen. Over time, the definition of the
scope of these rights has posed the potential for continuing debate and controversy. What does the concept of a “wall
of separation” mean? How does freedom of the press apply to TV? How does freedom of assembly and right of
petition apply to shopping malls? How do existing regulations and interpretations apply to cyberspace? Regardless of
the context, such questions should not obscure the central fact that Americans have fundamental rights related to these
issues which are formally embedded in their Constitution in written form.
PART I — GLOSSARY
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HABEAS CORPUS – A court order directing any official having a person in custody to produce the prisoner
in court and explain to the judge why the prisoner is being held.
EX POST FACTO – A retroactive criminal law making a particular act a crime that was not a crime when
the act was committed, or increasing punishment for a crime after the crime was committed
BILL OF ATTAINDER – Legislative act inflicting punishment, including deprivation of property, without
trial on named individuals, or members of a specified group
NON-PROTECTED SPEECH – Speech that is not entitled in some circumstances to constitutional
protection such as libel, fighting words, obscenity, and commercial speech
LIBEL - A written defamation of another person. Public figures have less protection than private citizens.
CIVIL LIBERTIES - Rights of all persons that cannot be denied by governmental power.
INCORPORATED - Bill of Rights were brought within scope of Fourteenth Amendment.
VOUCHERS - Money provided by the government to parents for payment of their children's tuition in a
public or private school of their choice.
FREE EXERCISE CLAUSE - Congress shall make no law prohibiting religious free exercise.
SEDITION - Written or oral criticism of government, or urging its forceful overthrow.
FREEDOM OF INFORMATION ACT - Legislation that makes records of public officials and agencies
available to citizens except where specifically protected (e.g. private financial, personnel, and criminal
investigation files.
SUNSHINE LAWS - Required public agencies to open their meetings to the general public.
SHIELD LAW - A state law that protects the sources used by a reporter from questioning in a trial.
NONPREFERENTIALIST VIEW - Court doctrine that allows government to support religious activities
that favor no specific faith.
ACCOMMODATIONIST DOCTRINE - Permits governmental support of activities that are only
incidentally religious.
NEW JUDICIAL FEDERALISM - The doctrine that states may extend freedoms guaranteed by the national
Bill of Rights.
ESTABLISHMENT CLAUSE - The clause in the First Amendment that states “Congress shall make no law
respecting the establishment of religion ...”
WALL OF SEPARATION - The doctrine that holds that the Constitution prohibits both the state and national
governments from aiding any and all religions and religious activities.
EXCESSIVE GOVERNMENT ENTANGLEMENT - The ruling in Lemon v. Kurtzman (1971) that a statute
to be constitutional must not foster “an excessive government entanglement with religion.”
FIGHTING WORDS - Words that have traditionally been recognized as likely by their very nature to inflict
injury or incite an immediate breach of the peace.
CLEAR AND PRESENT DANGER - A test requiring that speech can be inhibited only when it constitutes a
clear and imminent danger to substantial interests.
DANGEROUS TENDENCY DOCTRINE - The doctrine that holds that speech may be prevented if it tends
to lead to substantive evil.
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PREFERRED POSITION DOCTRINE - A formula that gives a special or privileged position to the First
Amendment freedoms in our constitutional system.
PRIOR RESTRAINT - The requirement that prior approval, usually in the form of a permit or license, must
be obtained before communication is permitted. The Court has been highly critical of this type of regulation.
FREE SPEECH - The right of individuals to have their say and the right for the rest of us to hear them.
OBSCENITY - Work that appeals to a prurient interest in sex, lacking intrinsic value.
RELIGIOUS FREEDOM RESTORATION ACT OF 1993 - Restored the use of the compelling interest test
which exempts people from laws and governmental actions that burden their religious freedom. The Act was
declared unconstitutional in 1997 by the Supreme Court.
BAD TENDENCY DOCTRINE - Authorizes legislative bodies to forbid speech that has a tendency to lead
to illegal action.
CIVIL DISOBEDIENCE - Refusal to obey the law or official orders as a symbol of protest.
PART II — POLITICAL DIALOGUE: THE CLASH OF ISSUES AND IDEA
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What does “actual malice” mean based on New York Times v. Sullivan? What limits does it place on public
officials who sue for libel?
Why is it illegal to prohibit the placement of political signs in the front yards of residential neighborhoods?
Why is it unconstitutional to prohibit public employees from speaking at public meetings? Are there any
conditions under which such speech may be inappropriate?
Why does the Supreme Court open each day with a prayer; yet the Court refused to allow public school
classes to open with a prayer?
Will granting federal income tax credits to patrons of parochial schools destroy the American public schools?
Do anti-abortion protestors have a moral right to wreck or bomb abortion clinics?
Why may judges impose gag orders on witnesses, the police, and lawyers and not the press?
PART III — POLITICAL SCIENCE TODAY
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Do you believe that a local community has the right to censor films, books, magazines, etc., under the guise
of “community standards”? The Supreme Court has had great difficulty defining obscenity, preferring to
leave such a determination to local governing bodies. Do you believe a community should have the right to
censor what its citizens can read and see? If not, do you believe a local government should be permitted to
regulate commercial establishments where sexually explicit films, books and magazines are sold, rented, or
viewed? If you agree with such local controls, what regulatory criteria would you recommend?
How far should government go in trying to regulate materials placed on the Internet? For example, should
Web pages dealing with the manufacture of dangerous weapons, such as bombs or biological weapons, be
blocked from public access? How could this be done?
PART IV — DATA ANALYSIS
The First Amendment is, of course, only one amendment of the ten amendments that collectively comprise the Bill of
Rights. In order to analyze your understanding of the Bill of Rights, please read the first ten amendments to the
Constitution. In the spaces below match the phrase (these phrases are frequently used in current political controversies)
with the number of the amendments to which it applies. You should understand that the phrases themselves are not
necessarily constitutionally correct or incorrect; they are simply phrases that are often heard. (You may wish to consult
other text chapters.)
1. _____
The government cannot take my land for that new road without paying me a fair price for it.
2. _____
Gun control is unconstitutional.
3. _____
If a magazine wants to publish instructions on how to build an atomic bomb, the govt. cannot stop
it.
4. _____
You can't be tried for the exact same crime twice if you were once found innocent of that crime.
5. _____
The government should not be able to keep a woman from having an abortion.
6. _____
Execution is cruel and unusual punishment.
7. _____
The police cannot enter my house without a search warrant.
8. _____
I refuse to answer on the grounds that it may tend to incriminate me.
9. _____
At my public high school, we can't open the assembly period with a prayer.
10. _____
In a criminal case, an attorney will be provided for you if you can't afford one.
11. _____
There are other rights besides those mentioned in the Constitution.
12. _____
I believe in states' rights; the Constitution reserves most governmental powers to the states.