American Government
Notes from 2/6 and 2/8

We could spend the entire semester talking about civil rights and civil liberties. We will probably re-visit many of these issues as the course progresses.

Today we talked about the First Amendment freedoms. The First Amendment reads: "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."

The basic First Amendment freedoms are therefore: (1) religion; (2) speech and press; (3) assembly and petition. As the chapter indicates, however none of these freedoms are absolute, and we still continue to have vigorous debates in our courts and legislatures about when First Amendment protections apply.

The first thing you might notice about the First Amendment is that it was written to apply only to Congress. It was not until the 1920’s that the courts began to use the equal protection clause of the 14^th Amendment (1868) to apply the First Amendment (and the rest of the Bill of Rights) to state laws as well. [SEE GRAPHIC]

Religion (Establishment Clause): There is a difference between the establishment clause and the free exercise clause of the First Amendment. The establishment clause basically means that the government can’t do things that favor one religion over another. An obvious example is that Congress is not allowed to pass a law that declares Protestantism to be the official national religion. But there are cases under the establishment clause that aren’t so clear. For example, can schools have organized prayer in the classroom? Or can states subsidize religious schools? Or can a town display a religious symbol such as a nativity scene during Christmas? The courts have said that the First Amendment does not require complete separation of church and state; that some forms of state aid or involvement are o.k. For example, tax funds can be used to provide parochial school children with textbooks, lunches, transportation and standardized testing services. In these cases, the courts have said that the particular aid is permissible because: (a) it has a secular purpose; (b) has a primary effect which neither advances or inhibits religion; and (c) doesn’t foster excessive government entanglement with religion. In other words, when the law is meant to serve some public purpose and does not require government officials to become too involved with particular religions, then it might be permissible. See the textbook for examples.

Religion (Free Exercise Clause): The Free Exercise Clause of the First Amendment prohibits laws and government action that restrict individual rights to believe and worship as they choose. However, the right to exercise one’s religious beliefs is not absolute; religious belief cannot be used as an excuse for any type of behavior. There are plenty of examples: laws banning polygamy are constitutional even though some Mormons argued that having multiple wives was part of their religion; states can restrict the use of peyote and other illegal substances even though they may be part of a religious ceremony. As long as the law does not "single out" a particular religion it can usually pass scrutiny. Take a close look at the "Animal Sacrifices" case on page 86, and the court’s rationale on page 129. This is a good example of where a law may violate the Free Exercise Clause.

Speech and Press: Even with the First Amendment, there are circumstances in which speech and press may be regulated or curtailed. Everyone probably has heard the statement "You can’t shout fire in a crowded movie theater." (Unless there really is a fire.) You also don’t have a First Amendment right to say or write something that is false about somebody; if you do you might get sued for libel or slander. And companies can’t make false claims about their products; commercial speech is subject to greater restrictions than non-commercial speech. But there are other areas that are not nearly as clear. For example, courts and political leaders continue to wrestle with issues like obscenity. And Congress has considered a constitutional amendment to ban flag burning after the Supreme Court ruled that this type of activity was a protected form of "symbolic speech." Finally, during times of war government has tried to limit speech that presented a "clear and present danger" to national security. But this is very difficult to show and courts are reluctant to accept restrictions on the First Amendment even when the country is at war.

Take a look at the definition of obscenity set out in the case of Miller v. California (page 90). What problems do you see with this approach? When do you think government should be able to regulate so-called "offensive" or "obscene" material?

Assembly and Petition: The right to "peaceably assemble" involves both assembly and association. Assembly refers to things like meetings, marches, rallies, etc. For these things, some government regulation is acceptable. Generally, government can place reasonable limits on the time, place and manner of a demonstration or other assembly. For example, it would probably not be unconstitutional for a town to prohibit a group from marching at 2 a.m., or down a busy interstate highway, or brandishing weapons. In the case of anti-abortion protesters, reasonable limits may also include requiring protesters to stay a certain distance away from an abortion clinic, or forbidding them from harassing individual patients. But government can’t place so many restrictions on people that they cannot demonstrate at all. The other thing government can’t do is place limits on the content of particular assemblies. If a town allows one group to march at a certain time and place, it can’t restrict another simply because of that group’s more extreme or repugnant views. See pp. 95-96 of the text.

Finally, government cannot do much to restrict your rights of association. You cannot be prosecuted for being a member of a particular political organization, such as the KKK, Communist Party or Nazi Party. Even membership in gangs may be protected, although gang activity is clearly not.