🕊️Civil Rights and Civil Liberties Unit 2 – First Amendment Freedoms

Key Concepts and Principles

• First Amendment protects fundamental freedoms essential to a democratic society including speech, religion, press, assembly, and petition
• Prevents government from infringing upon these rights, but does not apply to private entities or individuals
• Rights are not absolute and may be subject to reasonable restrictions based on compelling government interests
• Courts use various tests to determine if a restriction is constitutional, such as strict scrutiny, intermediate scrutiny, or rational basis review
  • Strict scrutiny requires the government to demonstrate a compelling interest and narrowly tailored means (used for content-based restrictions)
  • Intermediate scrutiny requires an important government interest and substantially related means (used for content-neutral restrictions)
• Concept of "marketplace of ideas" suggests that free exchange of ideas leads to truth and societal progress
• Prior restraint, or censorship before publication, is presumptively unconstitutional unless government can prove necessity

Historical Context

• Founders sought to protect individual liberties and limit government power after experiencing oppression under British rule
• Bill of Rights, including the First Amendment, was added to the Constitution in 1791 to enshrine these protections
• Sedition Act of 1798 criminalized criticism of the government, sparking early debates over free speech
• World War I saw restrictions on speech through Espionage and Sedition Acts, punishing dissent (Schenck v. United States)
• Civil rights movement of the 1950s and 1960s utilized First Amendment freedoms to advocate for racial equality
  • Sit-ins, protests, and boycotts challenged segregation laws and societal norms
• Vietnam War era witnessed protests and draft card burning, leading to further developments in free speech jurisprudence (Tinker v. Des Moines, Cohen v. California)

Freedom of Speech

• Protects expression of ideas, even if controversial or offensive, but not all speech is protected
• Unprotected categories include obscenity, defamation, fighting words, true threats, and incitement to imminent lawless action (Brandenburg v. Ohio)
• Government can regulate speech based on time, place, and manner restrictions if content-neutral and narrowly tailored
• Symbolic speech, such as burning the American flag, is protected under the First Amendment (Texas v. Johnson)
• Commercial speech, like advertising, receives less protection and can be regulated to prevent false or misleading claims
• Speech in schools can be limited if it causes substantial disruption or infringes upon the rights of others (Tinker v. Des Moines)
  • However, schools cannot engage in viewpoint discrimination or restrict speech solely because of its controversial nature
• Government employees have limited free speech rights and can face consequences for speech related to their official duties (Garcetti v. Ceballos)

Freedom of Religion

• Establishment Clause prohibits the government from establishing an official religion or favoring one religion over others
  • Tests like the Lemon test and endorsement test are used to determine violations (Lemon v. Kurtzman, County of Allegheny v. ACLU)
• Free Exercise Clause protects the right to practice one's religion without government interference
  • Government can only burden religious practices if it has a compelling interest and uses the least restrictive means (Sherbert v. Verner, Wisconsin v. Yoder)
• Religious beliefs do not excuse individuals from complying with neutral, generally applicable laws (Employment Division v. Smith)
• Government cannot discriminate based on religious beliefs or practices in employment, housing, or public accommodations
• Religious displays on public property, such as nativity scenes or Ten Commandments monuments, are evaluated on a case-by-case basis

Freedom of the Press

• Protects the right to publish and disseminate information without government censorship or interference
• Prior restraints on publication are presumptively unconstitutional, but can be justified in rare circumstances (Pentagon Papers case)
• Journalists have no special privileges and must comply with generally applicable laws, such as subpoenas or confidentiality agreements
• Defamation laws balance free press with individual reputation, requiring public figures to prove actual malice (New York Times v. Sullivan)
  • Actual malice means knowledge of falsity or reckless disregard for the truth
• Freedom of Information Act (FOIA) allows public access to government records, promoting transparency and accountability
• Shield laws in some states protect journalists from revealing confidential sources, but there is no federal shield law

Freedom of Assembly and Petition

• Protects the right to gather and express grievances to the government without fear of retaliation
• Government can impose reasonable time, place, and manner restrictions on assemblies if content-neutral and narrowly tailored
  • Permits can be required for large gatherings or those that disrupt traffic or public order
• Heckler's veto, or suppressing speech due to fear of hostile audience reaction, is unconstitutional (Forsyth County v. Nationalist Movement)
• Petition Clause guarantees the right to petition the government for redress of grievances, including through lawsuits or lobbying
• Picketing and boycotts are protected forms of assembly and petition, but can be regulated to prevent coercion or violence
• Government cannot retaliate against individuals for exercising their right to assemble or petition, such as through selective prosecution

Landmark Supreme Court Cases

• Schenck v. United States (1919): Introduced "clear and present danger" test for restricting speech, upholding conviction for distributing anti-draft leaflets
• Gitlow v. New York (1925): Incorporated freedom of speech and press to the states through the Fourteenth Amendment's Due Process Clause
• West Virginia State Board of Education v. Barnette (1943): Ruled that compelling students to salute the flag violates the First Amendment
• Engel v. Vitale (1962): Held that school-sponsored prayer in public schools violates the Establishment Clause
• New York Times v. Sullivan (1964): Required public figures to prove actual malice in defamation cases, protecting criticism of government officials
• Tinker v. Des Moines (1969): Affirmed students' right to free speech in schools unless it causes substantial disruption or infringes on others' rights
• Lemon v. Kurtzman (1971): Established three-part test for determining Establishment Clause violations
• Miller v. California (1973): Defined obscenity using a three-part test, excluding it from First Amendment protection
• Texas v. Johnson (1989): Upheld flag burning as protected symbolic speech under the First Amendment

Modern Challenges and Debates

• Hate speech and the tension between free expression and protecting marginalized groups from harassment and discrimination
• Online speech and the role of social media platforms in moderating content and enforcing community standards
  • Section 230 of the Communications Decency Act provides immunity to platforms for user-generated content
• Campaign finance laws and the balance between free speech and preventing corruption in the political process (Citizens United v. FEC)
• Religious exemptions to anti-discrimination laws, such as in the context of same-sex marriage or contraceptive coverage (Masterpiece Cakeshop v. Colorado Civil Rights Commission, Burwell v. Hobby Lobby)
• Government surveillance and the impact on free speech and privacy rights, particularly in the digital age
• Academic freedom and the debate over trigger warnings, safe spaces, and controversial speakers on college campuses
• Whistleblower protections and the balance between government secrecy and the public's right to know
• The line between protected speech and unprotected conduct, such as in the case of online threats or incitement to violence