Learning Objectives
After reading this section, you should be able to answer the following questions:
- What two clauses protect freedom of religion?
- What exceptions apply to freedom of speech?
- What protections do the media enjoy under freedom of the press?
- What are the benefits of and limitations on the right to assemble and petition?
Civil liberties touch upon many issues. In the next two sections, we describe the current interpretation of each right and outline the policies it affects.
Freedom of Religion
The First Amendment addresses freedom of religion in two distinct clauses: the establishment clause and the free expression clause.
Establishment Clause
Rejecting the British legacy of “established” churches, the establishment clause bars Congress from giving any religion an official status. In Jefferson’s much-quoted line, the establishment clause erects a “wall of separation between church and state.” A public policy may advance religious objectives only if its aim and main effect have nothing to do with religion. Thus a law forcing stores to close on Sundays can be justified to require employers to give staff a day off but not to enforce a Sabbath (Lemon v. Kurtzman, 1971).
The separation of church and state has generated high-profile controversies. The drama surrounding such confrontations is often captured by the press. In the 1920s, John Thomas Scopes was found guilty of teaching evolution in violation of a Tennessee law requiring that the Bible’s version of creation be taught in public schools. Scopes’s trial, portrayed in the stage play and film Inherit the Wind, was a precursor of later battles.
Starting in the 1960s, the Supreme Court, in a series of rulings, prohibited nondenominational state-issued prayers in school, Bible readings, moments of silence intended for prayer, and student-led prayers at graduation ceremonies and football games. (The Court did refrain from invalidating the Pledge of Allegiance for containing the words “under God.”) (Engel v. Vitale, 1962; Abington School District v. Schempp, 1963; Wallace v. Jaffree, 1985; Lee v. Weisman, 1992; Santa Fe Independent School District v. Doe, 2000). Court attempts to stop prayers are hard to enforce across the country—especially since they often receive saturation media coverage that gives most of the attention to those decrying what they see as judicial activism.
Free Exercise Clause
The First Amendment also says that Congress shall not prohibit the “free exercise” of religion. Individuals have the right to believe and practice their religions as they see fit. Government policies cannot target individuals’ religious practices or force actions that violate their religions.
This free exercise clause gained potency in 1943 when the Supreme Court ruled that Jehovah’s Witnesses could not be expelled from public schools for refusing to salute the American flag, an act contrary to their religion. More recently, the Supreme Court limited the clause’s reach when it ruled, in 1990, that American Indians had no right to disobey an Oregon law barring controlled substances in order to ingest peyote as part of a religious service. The Court held that laws hindering religious practices do not violate the First Amendment if they apply to all persons and do not openly refer to religion.
The establishment clause tries to keep religion out of government; the free exercise clause tries to keep government out of religion. The two objectives are not always compatible. For example, President George W. Bush proposed to allow government to contract with “faith-based” organizations to administer social programs. Opponents argued that this would violate the establishment clause by endorsing religion; Bush responded that existing policy violated the free exercise clause by discriminating against religious organizations.
Freedom of Speech
The Supreme Court has held that “debate on public issues should be uninhibited, robust, and wide-open” (New York Time v. Sullivan, 1964). Offensive speech is less detrimental than the “chilling effect” of individuals being silenced for fear of retribution. Nevertheless, freedom of speech is not absolute. Governments can regulate or restrict it under certain conditions.
Thoughts, Words, and Actions
Thoughts are deemed beyond the scope of government regulation; actions are heavily regulated by government; words are somewhere in between. The distinctions between thoughts, words, and actions are not always clear. Two cases of protest against the Vietnam War show how lines are drawn (United States v. O’Brien, 1968; Tinker v. Des Moines Independent Community School District, 1969). In one, a protester burned his draft card and was charged with violating a federal law that makes it a crime to knowingly destroy draft cards. The Court upheld the law, saying that the law aimed to maintain draft records, not to stifle free expression. When two students wore black armbands to their high school to protest the war and were suspended for violating the dress code, the Court found the policy sought to suppress free expression and sided with the students.
When Speech Can Be Regulated
The First Amendment does not protect speech that fails to contribute to the exchange of ideas that is crucial in a democracy—for instance, libel, obscenity, and “fighting words”—but such forms of speech are narrowly defined.
The publication of defamatory information, or libel, can be challenged in court. But officials and other public figures must demonstrate “actual malice” displayed by a “reckless disregard for the truth” (New York Times v. Sullivan, 1964). Thus libel cases are hard to win. Nonetheless, some litigants sue to shame a media organization publicly or to force it to spend money defending itself in court.
There is now a right to possess most obscene material in one’s home, but not to produce, sell, or ship it. Early in the twentieth century, obscenity laws had halted the circulation of works of art such as James Joyce’s now classic novel Ulysses. In 1957, the Supreme Court shrank the definition of obscenity from anything to do with sex to “material that deals with sex in a manner appealing to prurient interest” and “utterly without redeeming social importance.” This decision forced the justices to hear dozens of cases in order to distinguish obscenity from protected speech. The results were almost comical. The often elderly justices viewed numerous pornographic films, the earthy Thurgood Marshall recounting the goings-on to his patrician, sight-impaired colleague John Harlan. At one point, Justice Potter Stewart exasperatedly wrote in one opinion, “I know it when I see it.” Finally, in 1973, the Court established three rules that must be met for material to be obscene: it appeals to a prurient interest by the standards of the local community; it depicts specified sexual conduct in a patently offensive way; and it lacks serious literary, artistic, political, or scientific value (Roth v. United States, 1957; Stanley v. Georgia, 1969; Miller v. California, 1983).
In the 1920s, the Supreme Court allowed government to bar fighting words as long as there was a “clear and present danger” of provoking an immediate attack or acts of violence. In Justice Oliver Wendell Holmes’s terms, freedom of speech does not extend to the right to falsely yell “Fire!” in a crowded theater. Such a rule allowed for suppression of radical voices. As late as 1951, the Court upheld a federal law banning advocacy of the violent overthrow of the government. But the Court, in 1969, held that speech favoring illegal action is protected unless violence is both intended and likely (Schnenck v. United States, 1919; Dennis v. United States, 1951; Brandenburg v. Ohio, 1969).
Even when the government cannot bar speech, it can direct its time, place, and manner. But policies may not target particular content and must provide alternative ways to express oneself. If public universities and colleges cannot ban political speeches, they may restrict them to certain parts of campus such as “Free Speech Alleys.”
Speech Codes
Like fighting words, intimidation and harassment are not protected forms of free speech. By this logic, colleges and universities in the 1980s proposed campus speech codes to forbid the demeaning or stigmatizing of persons on the basis of race, ethnicity, gender, or sexual orientation. Proponents argued that speech codes would actually boost free speech, since “hate speech” deterred individuals who felt under attack from speaking out. But courts struck down the codes as too broad (Jacobs & Potter, 1998).
Freedom of the Press
The media claim special privileges under the First Amendment’s guarantee of “freedom of the press.”
Prior Restraint
The government is rarely able to stop material from being published. Even the Sedition Act of 1798, discussed previously in this chapter (Section 4.1 “The Bill of Rights”), did not include this prior restraint. The Supreme Court extended the ban to the states in 1931 when it struck down a Minnesota law allowing the state to suppress a “malicious, scandalous and defamatory” publication as a “public nuisance”—in this case, an abusively anti-Semitic periodical. Prior restraint is rarely justified: in 1971, the Court refused to issue an injunction sought by the executive branch against the New York Times and Washington Post on grounds of violations of national security. In the absence of the government’s proof that the national interest would be harmed, the Court allowed the publication of the Pentagon Papers, a leaked classified set of documents revealing decisions leading to the Vietnam War (Near v. Minnesota, 1931; New York Times v. United States).
News Media Privileges
Reporters have privileges that the public lacks: greater access to the workings of government, the ability to question officeholders, legal protection from revealing confidential sources, and access to government public information offices that feed them quotations and stories. But such privileges stem from policy and practice, not from constitutional rights.
Laws aimed at public disclosure, such as sunshine laws preventing government from working behind closed doors, benefit reporters. The Freedom of Information Act (FOIA), enacted in 1966, allows for access to executive agencies and commissions’ records and files closed to public inspection (Foerstel, 1999). Information obtained under the FOIA provides documentation for stories like USA Today’s discovery of a huge increase in the use and dealing of crack cocaine by individuals under age fifteen. Such information can also reveal scandals. In 1990, Washington Post reporter Ann Devroy was frustrated with White House Chief of Staff John Sununu’s refusal to answer her dogged questions about his rumored use of perquisites of office for private gain. Devroy filed for documents under the FOIA and found Sununu had used government planes to get to a dentist’s appointment and to attend postage-stamp auctions. Sununu resigned in disgrace.
Broadcast Regulation
Public policy treats different media differently. Broadcast and cable slots, being inherently limited, can be regulated by government in ways that are not allowed for print media or the Internet (Red Lion Broadcasting Company v. Federal Communication Commission, 1969; Turner Broadcasting System, Inc. et al. v. Federal Communication Commission, 1997).
The Federal Communications Commission (FCC), established in 1934, has the power to issue licenses for a given frequency on the basis of “the public interest, convenience, or necessity.” From the start, the FCC favored big commercial broadcasters aiming at large audiences. Such limits on competition enabled the establishment of hugely profitable radio (and later television) stations and networks, whose licenses—sometimes jokingly termed licenses to print money—the FCC almost automatically renewed.
The FCC has regulatory authority to penalize the broadcast media, but not cable television, for indecent content. During the halftime show at the 2004 Super Bowl, televised by CBS, singer Justin Timberlake tore the costume and briefly exposed the right breast of singer Janet Jackson. The FCC fined CBS $550,000 for the Super Bowl “wardrobe malfunction.” The fine was overturned by a federal court of appeals in July 2008. In May 2009, the Supreme Court returned the case to the court for reconsideration.
Rights to Assemble and Petition
Rights to assemble and petition government allow individuals to come together as groups and voice concerns. These rights permitted groups that were denied the vote—such as women before 1920—to state views and pressure government (Zaeske, 2003; Lumsden, 1997). Social movements claim that the rights protect protesting; interest groups argue that the right to petition government includes all lobbying.
Like speech, freedom of assembly can be regulated in its time, place, and manner. Thus demonstrations outside political party conventions may be limited to given areas, sometimes far from the event. Moreover, the right is “to peaceably assemble.” Governments have the power and responsibility to ensure that protests do not turn violent. But the failure to distinguish between an assembly and a mob has resulted in tragic consequences when unarmed protesters have lost their lives (see Note 4.20 “Enduring Images”).
Enduring Images
Kent State
- On May 4, 1970, at Ohio’s Kent State University, National Guardsmen fired on unarmed student protesters who had planned a noontime antiwar rally. Four students, including two passersby, died. A photographer snapped fifteen-year-old runaway Mary Ann Vecchio kneeling and screaming over Jeffrey Miller’s dead body. Another showed National Guardsmen, impersonal under gas masks, aiming rifles at defenseless students. Such images conjure up brutal, deliberate repression of rights of protest. They reappear on anniversaries of the Kent State killings, with captions like, “Americans were stunned to see photographs showing the government shooting on its own citizens, here in the world’s oldest democracy where the right of political dissent is supposedly fundamental” (Schuurman, 1998).
Key Takeaways
In this section we discussed the constitutional protections guaranteeing freedoms of religion, speech, the press, assembly, and petition. These important protections are far reaching but nonetheless subject to important exceptions.
Exercises
- What is the difference between the establishment and the free exercise clauses of the First Amendment? How do these clauses complement one another? How might they come into conflict?
- What kinds of speech are protected by the First Amendment? What factors determine whether speech is protected?
- Why might it be important for citizens of a democracy to have the right to assemble and to petition their government? In your opinion, what should the limits of these rights be?
References
Abington School District v. Schempp, 374 US 203 (1963).
Brandenburg v. Ohio, 395 US 444 (1969).
Dennis v. United States, 341 US 494 (1951)
Engel v. Vitale, 370 US 421 (1962).
Foerstel, H. N., Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (Westport, CT: Greenwood Press, 1999).
Jacobs, J. B. and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), 112–21.
Lee v. Weisman, 507 US 577 (1992).
Lemon v. Kurtzman, 403 US 602 (1971).
Lumsden, L. J., Rampant Women: Suffragists and the Right of Assembly (Knoxville: University of Tennessee Press, 1997).
Miller v. California, 413 US 15 (1973).
Near v. Minnesota, 283 US 697 (1931).
New York Post, October 3, 1973, as reported in J. Gregory Payne, “Aftermath,” May4Archive.org, www.may4archive.org/aftermath.shtml.
New York Times v. Sullivan, 376 US 254 (1964).
New York Times v. United States, 403 US 713 (1971).
Red Lion Broadcasting Company v. Federal Communication Commission, 395 US 367 (1969)
Roth v. United States, 354 US 476 (1957)
Santa Fe Independent School District v. Doe, 530 US 290 (2000).
Schenck v. United States, 249 US 47 (1919)
Schuurman, S., “Kent State Killings Shock Nation: 28 Years Ago This Week,” Weekly Alibi, May 11, 1998, weeklywire.com/ww/05-11-98/alibi_skeleton.html. The leading historian of Kent State is J. Gregory Payne, who provides a valuable narrative at May4Archive.org, www.may4archive.org.
Stanley v. Georgia, 394 US 557 (1969)
Tinker v. Des Moines Independent Community School District, 393 US 503 (1969).
Turner Broadcasting System, Inc. et al. v. Federal Communication Commission, 520 US 180 (1997).
United States v. O’Brien, 391 US 367 (1968)
Wallace v. Jaffree, 472 US 38 (1985).
Zaeske, S., Signatures of Citizenship: Petitioning, Antislavery, and Women’s Political Identity (Chapel Hill: University of North Carolina Press, 2003).
