United States Government: Democracy in Action

Chapter 13: Constitutional Freedoms

Chapter Overviews

[logo] Essential Question
Freedom of speech is one of Americans' most valued liberties, but are there limits to this and other basic freedoms under the Constitution?

Section 1 Constitutional Rights
The Constitution and the Bill of Rights inscribe into law the human rights, or fundamental freedoms, that belong to everyone. The Bill of Rights, in particular, stands as a written guarantee that government cannot abuse the rights of individuals. The Bill of Rights was intended to limit only the actions of the federal government, not state and local governments. The Fourteenth Amendment changed that, however. The Supreme Court interpreted its due process clause to limit state government actions. Almost all of the Bill of Rights have been incorporated, which means that U.S. citizens in every part of the country have the same basic rights. If citizens believe that a state or local authority has denied them their basic rights, they may take their case to a federal court.

Section 2 Freedom of Religion
The first clause of the First Amendment is known as the establishment clause and states "Congress shall make no law respecting an establishment of religion." The second clause—the free exercise clause—prohibits government from unduly interfering with religious actions. Thomas Jefferson referred to the establishment clause as a "wall of separation" between church and state. Some of the most controversial debates over church-state relations have focused on what kind of aid the government can give parochial schools. The Lemon test provides guidelines for state aid to church schools. The aid must have a nonreligious purpose, neither advance nor inhibit religion, and avoid "excessive government entanglement with religion." Prayer in public schools has consistently been ruled unconstitutional, although Bible study clubs may meet in public schools. The Supreme Court has also applied the establishment clause to overturn laws that banned the teaching of evolution and to disallow solely religious displays at government buildings.

Although the free exercise clause allows everyone to have religious beliefs, the Court applies restrictions if religious practices conflict with criminal laws. Religious practices such as polygamy or refusing to be vaccinated are prohibited. Other religious practices, such as refusal to salute the flag, or allowing Amish children not to attend public school after the eighth grade, have been upheld.

Section 3 Freedom of Speech
The First Amendment freedom of speech exists to protect the expression of unpopular ideas—popular ideas need little protection. Both pure speech and symbolic speech are included in this freedom, although some restraints on pure speech do exist. Seditious speech is outlawed, as are words that present a "clear and present danger." The Court has also allowed speech to be restricted if it has a tendency to lead to illegal action. Other types of speech not protected by the First Amendment include defamatory speech, "fighting words," and student speech that occurs "as part of the school curriculum."

Section 4 Freedom of the Press
In many nations, prior restraint (censorship) is a common way for government to control information and limit freedom. In the United States, the Supreme Court has ruled that the press may be censored only in cases relating directly to national security. Conflicts have occurred between the First Amendment's freedom of the press and a defendant's Sixth Amendment right to a fair trial. Reporters must surrender evidence, although some states protect reporters' sources with shield laws.

Radio and broadcast television do not enjoy as much freedom as other press media because they use public airwaves. The Federal Communications Commission cannot censor programs, but it can punish stations that broadcast indecent language. The Court has given Internet speech the same First Amendment protection as print media. Advertising—or "commercial speech"—is strongly regulated, although the Court has relaxed controls recently. The Court has also placed censorship limits on local communities who set their own standards for defining obscenity.

Section 5 Freedom of Assembly
Freedom of assembly is closely related to freedom of speech because most gatherings involve some form of protected speech. Freedom of assembly includes the right to parade and demonstrate in public. The Court has upheld state and local laws requiring that groups wanting to demonstrate first obtain a permit, as long as the permit is to provide for public order and safety and not to silence unpopular ideas. The Court has set additional limits on public demonstrations in airports, courthouses, and schools. The right to assemble does not allow a group to demonstrate on private property, such as shopping malls. As long as demonstrators remain peaceful, they cannot be charged with disorderly conduct even if the surrounding crowd becomes violent. Picketing is upheld as protected assembly as long as there is a labor dispute.

The First Amendment also protects freedom of association, or the right to join a political party, interest group, or other organization. During the 1950s, the fear of communism led to government arrests of subversives, primarily Communist Party members. Their arrests were upheld as advocating the forcible overthrow of the government. Later Supreme Court cases, however, narrow the precedent to actually preparing for the use of force against the government.

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