6.12: First and Second Amendment Rights

There are contemporary examples of cases where the First Amendment would appear to be under attack. These issues include such questions as to what extent does the First Amendment allow for freedom of speech and expression in schools?

Which is more important – the right to freely exercise and express one’s religious beliefs or the requirement that government actively separate issues of church and state?

• Does the government have the right to limit or forbid the expression of unpopular views in a public forum?
• Can members of the press be threatened with jail time for reporting on important government programs?

Source:  Amendment I: Freedom of Religion, Speech, Press, and Assembly,  Rutherford 
Institute, https://www.rutherford.org/constitutional_corner/amendment_i_freedom_of_religion
_speech_press_and_assembly/accessed 1/28/2015

FOR A LIST OF FIRST AMENDMENT CASES AND ISSUES GO TO:

Institute for Justice

The New York Times: First Amendment (U.S. Constitution)

First Amendment Schools

First Amendment: Free Speech, Press, and Assembly

In December 1965, a group of students in Des Moines, Iowa held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and on New Year’s Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it. A refusal to do so would result in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.

Through their parents, the students sued the school district for violating the students’ right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.

The question before the court was:

Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?

The answer from the court was expressed by Justice Abe Fortas who delivered the opinion of a 7-2 majority.

The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school. In this case, the school district’s actions evidently stemmed from a fear of possible disruption rather than any actual interference.

The Court has been particularly protective of political speech (and less protective of other kinds of speech such as commercial speech). In several different ways, individuals have greater leeway in speaking about politics than they do about other subjects. For example, the First Amendment does not give individuals the right to lie about others. If someone lies about you in writing (libel) or in speech (slander), you can sue them and collect monetary damages from them for defaming your character. However, if you were a public official, you would have to meet a higher legal standard to collect your money. In a landmark Supreme Court case, New York Times Co. v. Sullivan, a Montgomery, Alabama city commissioner sued the New York Times for running an ad that contained false information about him. While an Alabama court ruled in his favor, the Supreme Court overruled the lower court's decision declaring that:

Video: 50th Anniversary of New York Times v. Sullivan

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The Court has also provided broad protection for things that are said, written or broadcast during the course of a political campaign. The Court has even upheld the right of candidates to spend as much of their own money as they choose. In 1974, the Congress passed the Federal Election Campaign Act, part of which sets limits on the total amoun oft candidates for federal elective office could spend on their campaigns. In response to challenges brought by several candidates in Buckley v. Valeo, the Court declared the limits on spending a violation of the candidates' First Amendment rights. In its decision, a unanimous Court observed:

Video: Buckley v. Valeo

However, while the Court rejected overall spending limits for candidates and their campaigns, it let stand limits on the amount that individuals can give to candidates. Why the distinction? When a candidate spends his or her own money on a political campaign, the voters know what they're getting. They can make any adjustments in their voting decisions they choose based on how wealthy a candidate is and how much he or she spent to get elected. In any case, a wealthy individual bankrolling his or her own campaign only directly influences the outcome of one election. However, if a wealthy individual were to give large amounts of money to numerous candidates, that single person would be exerting an inordinate amount of influence on the political process. At the same time, the influence of other less-wealthy individuals would be diluted. To preserve the amount of influence wielded by average citizens in the course of an election, then, the Court let stand limits on the amount of money wealthy individuals can contribute to political campaigns.

Exceptions such as letting the limits on campaign contributions stand are rare in the area of political expression. This seems consistent with what the Framers of the Constitution intended. Indeed, there are protections provided in the Constitution itself for the things House members and Senators say in the course of their official duties as Members of Congress. Among other legal immunities, Article I, Sec. 6 states that Members of the House and Senate "shall not be questioned in any other Place" for "any Speech or Debate in either House." To a large degree, the Framers intended political speech to be as free and open as possible, for it was through the expression of ideas that the people could contribute to, influence and change their government.

Standards for Limiting Expression

In addition to giving the freedom of speech a "preferred" position as it weighs the merits of cases that come before it, the Supreme Court also applies four very specific and strict standards that must be met before a limitation on speech or expression can be deemed constitutional.

First, laws must not exercise what the Court calls "prior restraint." Only in the most extreme circumstances can the government constitutionally prevent someone from speaking or expressing themselves. To do so would be censorship and the standards for taking such an extreme measure to bear the "heaviest burden in constitutional law." 1 The Court has declared that "a prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it, at least for the time." 2 Instead of limiting speech that might be defamatory or otherwise illegal before it happens, the Court has ruled that the appropriate action is to undertake civil or criminal proceedings after the fact.

Second, laws limiting speech must be content neutral. If the government enacts a limit on a particular kind of speech or form of expression, such as posting flyers on telephone poles, it must ban all flyers, and not just flyers with a particular subject matter. If only commercial flyers or religious flyers were banned, the law would not be content neutral. The Court has allowed some content-based limitations where public interests seem to overwhelm the individual's rights of expression. Kinds of speech that have been constitutionally limited on a content basis include obscenity (see "Defining Obscenity" on the right), libel and slander, "fighting words" (words clearly aimed at starting a fight or provoking violence), and "subversive speech" or speech promoting the violent overthrow of the government.

Third, laws limiting speech or expression cannot be vague to the extent that they cause a "chilling effect" on speech. If ambiguous or unclear restrictions are placed on expression, individuals may not know what is acceptable under the law and what is not. To avoid the penalty of breaking the law, some people may choose to limit the the things they say and express more severely than the law intended. When this occurs, the law has produced a "chilling effect" on speech, making individuals less likely to speak openly and freely. Such laws, the Court has ruled, are unconstitutional.

Finally, a law (or ordinance) limiting speech or expression can only be deemed constitutional if it is the least drastic means available for accomplishing its stated objectives. For example, there is a clear public interest in keeping streets safe and, to the degree possible, free from congestion. Toward this end, a city might decide to ban all parades or marches on its streets. Such a ban, however, would not be the least restrictive means available. Instead, limiting the time and duration of parades and marches and requiring prior public notice of them would achieve the stated goals of the more restrictive law without unduly infringing on the individual freedom of expression.

Defining Obscenity

Video: First Amendment-Obscenity

While the Court has made it clear that obscenity is not protected by the First Amendment, defining obscenity is another matter altogether. Ultimately, the Court has left to juries to decide based on guidelines it has provided. Defendants can then appeal the decision of the jury if they believe the guidelines were misapplied. What are the standards? In Miller v. California, the Court found that a form of speech or expression can be ruled obscene if:

1. The "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest."
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

These guidelines are necessarily vague and leave open the possibility of having different definitions of obscenity in Norman, Oklahoma and San Francisco, California. The Internet has further complicated the definition of obscenity because there is no obvious community standard on which to base it.

Freedom of Expression on the Internet

The Internet presents a classic example of the difficulties that often arise in the Supreme Court's efforts to distinguish between acceptable and unacceptable speech and expression. While the Internet affords ordinary citizens unprecedented access to information and gives them the ability to communicate with large numbers of people without ever leaving their homes, it has also given rise to several new First Amendment controversies. Most notably, there are thousands of sites on the internet that contain pornographic and violent material. Much of it would be considered obscene in many communities in the United States. Such materials have always existed--the Internet just makes it more easily accessible. The problem posed by the presence of these materials on the Internet, however, is that children can gain access to text and images that are intended for adults or that may even be illegal.

In an effort to protect children from being exposed to pornographic or violent images on the Internet, the Congress passed the Communications Decency Act in 1995 (CDA). The law would have made it a crime to transmit "indecent material" to minors over the Internet. Doing so would have been punishable by up to two years in prison and a fine of $250,000.

What Can't You Say (Write) on the Internet?

The kinds of material that can legally be published on the Internet, however, is still being defined by the Court. A federal court judge ruled in favor of a high school student who was suspended for publishing information critical of his band instructor on his personal web site, ordering the school to terminate the suspension and to cease efforts to control what the student published on his web page. 4 In another case, however, a federal judge ordered the authors of an anti-abortion web site to take the site off the Internet. The site included a list of names of doctors who performed abortions. Doctors who had been murdered had their names crossed out and those who had been injured in attacks on abortion clinics had their names listed in gray. In spite of the court's order, however, there are still several sites on the Internet with lists of abortion doctors, similar to the one on the original site. 5

Video: Reno v. ACLU

In response to a challenge of the Act, Reno v. ACLU, the Court declared the CDA unconstitutional because it:

1. Was not content neutral. In fact, Justice Stevens, who wrote the decision, declared that "the CDA is a content based blanket restriction on speech" because it explicitly singles out indecent material, i.e. profanity, vulgarity and pornography.
2. It was too vague. While the Congress sought to limit "indecent" material on the Internet, what the law meant by "indecent" was unclear. Because of this ambiguity, several web sites removed constitutionally protected materials from their pages. The Court found that the "chilling effect" of the CDA's ambiguity "suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
3. It was not the least drastic means available for keeping minors from viewing indecent material. Instead of making the transmission of such materials a criminal act, the Congress could have encouraged (and possibly mandated) a web site rating system or the use of filtering software.

Because the Internet presents challenges so different from those we have seen in the past, and because the Court makes decisions on a case by case basis, it is difficult to summarize the broad principles that guide the Court's approach to expression on the Internet. As more cases arise and are heard by the Supreme Court and lower courts, however, a clearer pattern will eventually emerge.

Exceptions to Free Speech Protection

Some exceptions to the Supreme Court's usually broad definition of protected speech have been mentioned above (obscenity, libel and slander). In general, constitutional limits on speech and expression fall into three categories: content restrictions, place restrictions and symbolic speech. Under the circumstances that apply in each of these categories, speech and expression may not be afforded as much protection as they would be under ordinary conditions.

Content Restrictions

As has been noted, obscenity and defamation are not protected by the First Amendment. Additionally, the Court has allowed speech to be restricted in certain places. While public forums, such as parks and the steps of the United States Capitol, are offered almost blanket protections on speech, public libraries, court rooms, public schools and jails are not. The Court has ruled that in the interests of order and decorum, speech and expression may be reasonably limited in these places.

Additionally, speech that presents a "clear and present danger" may, in some instances, be unprotected by the First Amendment. The most famous statement of this doctrine is found in a decision arising from the Espionage Act of 1917 and the Sedition Act of 1918 which, among other things, made it a punishable offense to obstruct the draft, cause insubordination in the armed forces or make false statements that might hamper the war effort. The case centered on the actions of a man who had mailed circulars to draft-eligible men claiming that the draft was unconstitutional. Writing for the Court, Justice Oliver Wendell Holmes wrote in Schenck v. United States (1919):

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

Video: Schenck v. The United States

While the Court no longer relies on the "clear and present danger" test to determine if limits on speech are constitutional, support remains for the notion that certain kinds of speech or expression can be limited, especially during wartime, if they would clearly harm the nation, its people or its military forces. The Court makes a distinction between abstract or theoretical statements that are critical of the government and clear calls to action promoting violence against the government (see Footnote 3).

Commercial speech has also been afforded less protection than other kinds of speech. In the case of advertising, for example, the Court has generally ruled that the public interest demands that claims made about a product or service be accurate and not misleading. Commercial speech is still afforded a great deal of protection under the First Amendment, but not the same degree as other forms of speech.

A final type of expression that can be constitutionally limited is symbolic speech. While the First Amendment explicitly forbids the Congress from abridging the freedom of speech, there are many forms of communication that do not, in whole or in part, rely on words. Although the Supreme Court has provided protection for many different modes of "expression," the more action that is involved in a form of expression, the less First Amendment protection it receives. For example, the First Amendment protects the rights of individuals to use words to express racist attitudes, but it does not always protect their right to burn crosses to express those views. (Cross burnings have been allowed under some circumstances, but, where other laws, such as prohibitions on open fires or no trespassing ordinances, are violated by doing so, the action is not protected by the First Amendment.)

One of the most famous cases involving symbolic speech addressed the burning of a draft card. The defendant in the case burned his draft card in front of a large crowd to express his belief that the war in Vietnam was unjust and immoral. He was subsequently arrested and convicted of violating the Universal Military Training and Service Act. In response to an appeal of the conviction (United States v. O'Brien), the Court emphatically stated that burning one's draft card was not a form of expression protected by the First Amendment:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. . . . [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Freedom of the Press

The Framers of the Constitution considered the freedom of the press one of the fundamental rights of the people in a republic. Illustrative of this belief is a statement of Thomas Jefferson in a letter written to Edward Carrington in 1787:

The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.

Given the widespread use of "papers" and pamphlets in the battle for ratification of the Constitution, it is not surprising that the Framers placed such a high value on the ability of people to write, print and distribute statements of their beliefs.

Prior Restraint

The government is rarely able to stop material from being published. Even the Sedition Act of 1798, 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 The Washington Post on grounds of national security violations. 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. [9]

Video: The Pentagon Papers

News Media Privileges

Reporters have privileges that the public lacks. These include 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. Such privileges stem from policy and practice, not from constitutional rights. Laws aimed at public disclosure benefit reporters. For example, the Sunshine Laws passed to prevent the government from working behind closed doors. The Freedom of Information Act (FOIA), enacted in 1966, allows for access to executive agencies and commissions’ records and files closed to public inspection. [10] 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 the government in ways that are not allowed for print media or the Internet. [11]

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 singer Janet Jackson's costume and briefly exposed her right breast. 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.

The Press in Other Countries

Americans often take for granted many of the liberties they enjoy. For example, we just assume that the press will not be punished for writing articles or reporting stories critical of the government. The press in other nations does not enjoy such latitude. In the summer of 1999, the government of Tanzania imposed a seven-day ban on a newspaper that ran a story about a proposed salary increase for government officials. The government claimed the article in question was "fanning discontent and hatred among the people towards the government." 6

Consistent with the Framer's support for the freedom of the press and the First Amendment, the Supreme Court has generally upheld the ability of the press to print or broadcast messages and images of its choice. (The obvious exceptions to this protection include obscenity and defamation.)

Several cases have arisen challenging the freedom of the press to report what it chooses or of laws limiting that freedom. Many of these cases overlap significantly with other First Amendment cases, such as the New York Times defamation case cited above. Consequently, the same privileges that are protected at the individual level are also enjoyed by the press. One major exception is the Court's stance that the First Amendment does not give reporters the right to withhold information gathered confidentially. If called to testify, the reporter may have to divulge the sources of information they have reported (see Branzburg v. Hayes).

In two separate cases, the Court ruled that the rights enjoyed by the print media are, in some cases, broader than those enjoyed by the broadcast media (radio and television). While newspapers do not have to provide space for persons to respond to negative stories about them, radio and television stations may be required to provide airtime. Why the difference? The government regulates the number of radio and television signals that can be broadcast in a given geographical area. Consequently, there are a limited number of radio and television stations in a city or town. If someone is criticized on television or on the radio, there are a limited number of places he or she can go to respond. Newspapers, however, are not limited by the government. Anyone with a printing press (or a copying machine) can produce a "paper" and distribute it. If someone is criticized in a newspaper, the Court does not require that paper to give them the chance to respond because there are numerous different ways in which they could respond, even printing their own paper.

Freedom of Assembly and Petition

The last and most frequently neglected rights guaranteed by the First Amendment are the right to assemble and to petition the government. While the rights of assembly and petition are intimately connected to the freedom of expression, they are necessarily limited in important ways. In particular, in cases involving the freedom of assembly, the Supreme Court has not given as much weight to individual rights as it does in other First Amendment cases. For example, when a man gave a speech on a public street in New York protesting racial discrimination and a large unruly crowd assembled, the Court ruled that the police were justified in stopping the speech and sending the crowd home (see Feiner v. New York). In that case, the Court gave greater weight to the preservation of public safety and order than it did to the rights of the people to assemble and express themselves in public.

In other ways, however, the Court has upheld the rights of the people to assemble and to have some realm of privacy within the context of their meetings. Alabama's efforts to force the NAACP to make public its membership lists, for example, were found unconstitutional. When people assemble peacefully and there is no immediate threat to public safety, the Court has upheld the right to assemble in public places.

One of the more recent assembly controversies centers on the rights of protesters at or around abortion clinics.

In 1991, the United States Congress passed the Freedom of Access to Clinic Entrances Act (FACE) (U.S. Code 18 Sec. 248). The Act made unlawful any action that:

. . . by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.

The law also allows for the Courts to "award appropriate relief, including temporary, preliminary or permanent injunctive relief" in response to violations of the law. Pro-Life activists have repeatedly challenged the law on the grounds that it violates their First Amendment rights of expression and assembly. The courts have consistently rejected such arguments maintaining that protesters may assemble and express themselves as long as they do not forcibly attempt to prevent people from entering abortion clinics.

The Second Amendment

Created on December 15, 1791, the Second Amendment to the United States Constitution is part of the United States Bill of Rights that establishes the right of citizens to possess firearms for lawful purposes. It says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." There has been increased conflict over the Second Amendment in recent years due to school shootings and gun violence. As a result, gun rights have become a highly charged political issue.

But the relative simplicity of its text has not kept it from controversy; arguably, the Second Amendment has become controversial in large part because of its text. Is this amendment merely a protection of the right of the states to organize and arm a “well regulated militia” for civil defense, or is it a protection of a “right of the people” as a whole to individually bear arms?

Before the Civil War, this would have been a nearly meaningless distinction. In most states at that time, white males of military age were considered part of the militia, liable to be called for service to put down rebellions or invasions, and the right “to keep and bear Arms” was considered a common-law right inherited from English law that predated the federal and state constitutions. The Constitution was not seen as a limitation on state power, and since the states expected all able-bodied free men to keep arms as a matter of course, what gun control there was mostly revolved around ensuring slaves (and their abolitionist allies) didn’t have guns.

With the beginning of selective incorporation after the Civil War, debates over the Second Amendment were reinvigorated. In the meantime, as part of their black codes designed to reintroduce most of the trappings of slavery, several southern states adopted laws that restricted the carrying and ownership of weapons by former slaves. Despite acknowledging a common-law individual right to keep and bear arms, in 1876 the Supreme Court declined, in United States v. Cruickshank, to intervene to ensure the states would respect it.

In the following decades, states gradually began to introduce laws to regulate gun ownership. Federal gun control laws began to be introduced in the 1930s in response to organized crime, with stricter laws that regulated most commerce and trade in guns coming into force in the wake of the street protests of the 1960s. In the early 1980s, following an assassination attempt on President Ronald Reagan, laws requiring background checks for prospective gun buyers were passed. During this period, the Supreme Court’s decisions regarding the meaning of the Second Amendment were ambiguous at best. In United States v. Miller, the Supreme Court upheld the 1934 National Firearms Act’s prohibition of sawed-off shotguns, largely on the basis that possession of such a gun was not related to the goal of promoting a “well regulated militia.”

This finding was generally interpreted as meaning that the Second Amendment protected the right of the states to organize a militia, rather than an individual right, and thus lower courts generally found most firearm regulations—including some city and state laws that virtually outlawed the private ownership of firearms—to be constitutional.

However, in 2008, in a narrow 5–4 decision on District of Columbia v. Heller, the Supreme Court found that at least some gun control laws did violate the Second Amendment and that this amendment does protect an individual’s right to keep and bear arms, at least in some circumstances—in particular, “for traditionally lawful purposes, such as self-defense within the home.”

Because the District of Columbia is not a state, this decision immediately applied the right only to the federal government and territorial governments. Two years later, in McDonald v. Chicago, the Supreme Court overturned the Cruickshank decision (5–4) and again found that the right to bear arms was a fundamental right incorporated against the states, meaning that state regulation of firearms might, in some circumstances, be unconstitutional. In 2015, however, the Supreme Court allowed several of San Francisco’s strict gun control laws to remain in place, suggesting that—as in the case of rights protected by the First Amendment—the courts will not treat gun rights as absolute.

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Figure 6.12.1

Study/Discussion Questions

1. Give an example of the "competing interests" between freedom of speech and freedom of religion. Explain your answer.

2. Why was the Tinker v. Des Moines case so important to students (especially during the 1960s).

3. What standards do the courts use in placing limits on the First Amendment right to freedom of expression?

4. Why is freedom of expression on the Internet such a complicated and critical issue? What factors limit the courts' ability to protect and/or limit internet communications?

5. What is the "clear and present danger" test? Give a current example of what you would see today as a "clear and present danger" what would allow for the limitation of First Amendment rights. Explain and defend your answer.

7. Why is prior restraint considered unconstitutional in most cases? Under what circumstances would you consider the use of prior restraint appropriate? Explain your answer.

8. Why should working journalists have legal protections that others might lack when reporting on controversial topics? Should these protections extend to an amateur "blogger" who posts inflammatory or controversial issues on the Internet? Explain and defend your answer.

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NOTES/Sources

1. Rex Lee, A Lawyer Looks at the Constitution (Provo: Brigham Young University, 1981), 112.

2. United States Supreme Court, CBS, INC. v. DAVIS (1994)

3. In cases dealing with "subversive speech," the Supreme Court has ruled that only if the 
speech or expression under review can be show to have directly promoted and led to a 
conspiracy or actual effort to overthrow the government, it cannot be limited. Speaking 
of the overthrow of the government in abstract terms, without laying out or calling for 
specific actions to accomplish it, is protected by the First Amendment.

4. Associated Press, "Court lets student keep Web site," USA Today 19 March 1998, Tech 
Report.

5.Courtney Macavinta, "Anti-abortion sites vs. free speech," CNET News.com 12 March 1999.

6. Associated Press, "Newspaper Banned," 24 July 1999.

Source: www.thisnation.com/textbook/billofrights- 

7. Pew Center. PEW VALUES UPDATE: AMERICAN SOCIAL BELIEFS 1997 - 1987 Part 1 , PEW VALUES 
UPDATE: AMERICAN SOCIAL BELIEFS 1997 - 1987 Part 2. 8. Pew Center. Millennium Survey.