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The First Amendment


First amendment was a result of avoiding ... is a key element of the First Amendment ... In examining first amendment issues, the courts must make a ... – PowerPoint PPT presentation

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Title: The First Amendment

The First Amendment
  • Constitutional Law-Rights of the Accused
  • Chapter 4
  • Bill Henry

The First Amendment
  • Protection of the first amendment is essential in
    a free democracy
  • free and fair elections require open dialogue,
  • First amendment was a result of avoiding
    religious persecution
  • reason for fleeing Europe, essential element for
    believing in a free society

The First Amendment
  • First Amendment is examined more often than most
  • freedom of the press
  • internet
  • inmate rights

Freedom of Religion
  • Religious freedom is a key element of the First
  • supported by the phrase Congress shall make no
  • The phrase is also used to protect verbal or
    written communication and assembly
  • It must be remembered that constitutional
    language is rarely interpreted literally

Freedom of Religion
  • The conflict is presented when government
    regulations are in conflict with perceived
    individual rights
  • government is prevented from regulating first
    amendment protections unless the practice
    inflicts harm
  • religious harm would include human sacrifice,
    animal sacrifice or cannibalism

Freedom of Religion
  • Strict scrutiny test
  • 1963 opinion by Justice Brennan that tried to
    balance the governments regulating interest in
    religion to the individuals right to practice
  • 1990, Brennans opinion was set aside by Justice
    Scalia for his free exercise clause

Freedom of Religion
  • Free exercise clause
  • government does possess the authority to impose
    law and regulations on the entire citizenry even
    if those laws prevent some from participating in
    practices essential to their religious beliefs
    even if those practices impose no harm to other
    people (Scalia, 1990)

Protecting Speech
  • First Amendment was put into place to prevent
    government from punishing individuals for
    expressing their opinion
  • this was so important to the authors that they
    used absolutist language using the term abridge
  • Court tends to view first amendment issues in a
    non-absolutist fashion

Determining Violations
  • In examining first amendment issues, the courts
    must make a distinction between what is said and
    concerns unrelated to speech.
  • Content based restricting the message and almost
    always a violation
  • Content-neutral restricting concerns unrelated
    to the message

Politics and Policy
  • The ability to speak out about politics and
    policy is essential in a free society
  • as recent as the early 1900s, the court allowed
    the arrest and prosecution of those that spoke
    out against government policy
  • national security issue
  • Political speech is protected unless it is
    designed to incite immediate lawless action

Symbolic Speech
  • Symbolic speech is also referred to as mute
    expressive acts
  • Symbolic speech has never had the same level of
    protection as linguistic speech
  • Has two elements expressive and behavioral
  • Defining case was United States versus OBrien

Symbolic Speech
  • OBrien has been used to protect flag burning
  • court has said because a few in society find it
    offensive or disagree does not make it a
  • In cases with the Ku Klux Klan, courts have
    upheld violations because actions were designed
    to intimidate

Speech Not Protected
  • There are five categories of speech not protected
    by the First Amendment
  • Obscenity Test for obscenity is the Miller Test.
    Factors are
  • more than arousing a normal interest in sex
  • depicts hardcore sexual acts
  • lacks serious literary, political, scientific or
    other value

Speech Not Protected
  • Fighting Words
  • Speech content is personally abusive, insulting
    or derisive
  • It is addressed at another to his/her face under
    circumstances likely to provoke an immediate and
    violent response
  • It is not enough that the words are offensive or
    might provoke retaliation

Speech Not Protected
  • Incitement to Riot is classified as clear and
    present danger
  • Speaker intends to incite audience to action
  • speaker urges the audience to perform immediate
    concrete acts of violence
  • danger of outbreak is imminent

Interest Balancing
  • Interest balancing is used to determine
    governments right to regulate speech concerning
    non-communicative impacts
  • traffic noise
  • trash
  • domestic tranquility
  • restriction must be least restrictive alternative

Freedom of the Press
  • Protection is regarded as essential due to
    dissemination of information
  • Individuals rely heavily on print and broadcast
  • Government must show a compelling interest to
    restrict media
  • National Security
  • Fair trial issues
  • Change of venue

To Know
  • Abridged
  • categories of unprotected speech
  • first amendment relationship to free democracy
  • symbolic speech
  • Miller Test
  • non-communicative impacts