Mr. McCormack Chapter 19 Essentials Study Guide
American Government
• The Constitution establishes the principle of limited government. Unlike a dictatorship, the power of our government is not absolute because the people have many freedoms. Many of these freedoms are found in the Bill of Rights, the first ten amendments to our Constitution, that was added by the first Congress to satisfy popular demand.
• Today, when Americans think of their rights, they usually think of two slightly different ideas. Civil liberties are protections from government abuse (for example, the government cannot use cruel or unusual punishment); civil rights involve instances in which the government protects you from abuse by others that interferes with your liberties (for example, the government will fight workplace discrimination that interferes with your “pursuit of happiness”).
• Rights are not absolute, either – for absolute freedom means anarchy. Basically, we enjoy the freedom to do as we like so long as we do not infringe on the freedom of others. For example, our freedom of speech does not mean we have the freedom to threaten others.
• Constitutional rights apply to everyone in the United States, regardless of citizenship or the state in which they reside. Originally, this was not the case because many people (ie slaves) were denied their rights and because the Supreme Court interpreted the Bill of Rights as restrictions on the federal government only. In the twentieth century, over many years, the Supreme Court began to apply the Bill of Rights to the state governments through the Fourteenth Amendment’s Due Process Clause. This process is called incorporation, and today nearly all of the Bill of Rights applies to the states (an example of a right that has never yet been applied to the states is the Third Amendment’s ban on the quartering of troops).
• The Ninth Amendment asserts that the people have rights that have not been listed in the Bill of Rights, but the Supreme Court has never really relied on that amendment. The Court’s use of the Due Process Clause to protect everything considered “essential to the American concept of ordered liberty” has accomplished the same end, however.
• The First Amendment contains five freedoms: religion, speech, assembly, petition, and press.
• The Freedom of Religion has been treated as two different ideas: establishment and free exercise. While evidence (for example, the continued establishment of state churches for decades) suggests the establishment clause was designed only to prevent the creation of an official national religion, others began to argue that the amendment erected a “wall of separation” between church and state. After much controversy, we have concluded that some state assistance is permissible, but that this assistance has limits. One way the Court has recognized unconstitutional assistance is the Lemon Test. This test maintains that the law must have a non-religious purpose, that its effect must neither advance nor inhibit religion, and that the law must not foster an excessive entanglement with religion. In the 1990s the Court seemed to follow a simpler test, asking only if the government action created the appearance of “endorsing” religion.
• The free exercise of religion means that the government cannot restrict your religious belief in any way. It also means that the government cannot interfere with your religious practice, within reason. Although some people have tried to use religion to justify criminal activities including drug use and prostitution, the courts have rejected those arguments. The test for reasonable government restrictions on religion was demonstrated in the Church of Lukumi Babalu Aye v. Hialeah. First, the law must be neutrally drafted and generally applied. If both conditions are met, then the law is probably constitutional, unless the burden it imposes on the particular religion is extreme. If the law is not neutral or the burden is great, then the law must satisfy a compelling government interest (for example, saving lives) using the least restrictive means possible.
• The freedom of speech protects more than just spoken words, so it may be considered the freedom of expression. Written words, paintings, sculptures, photographs, sounds, and expressive conduct (protests, dances, etc.) are all been considered protected forms of expression. There are many ways to approach regulating speech. The first approach, limiting when, where, and how you speak, is generally constitutional so long as the restrictions weren’t designed for the purpose of restricting speech. For example, the government cannot prohibit flag burning to silence those expressing disapproval of the United States, but it can prohibit flag burning as part of a general burning ban. The second approach, punishing speech for the content it conveys, is generally unconstitutional unless the prohibited content falls into one of several traditional exceptions.
• Time/Place/Manner restrictions of speech often seem like common sense. Allowing people to hold rallies in the middle of the night in a residential neighborhood or on a busy highway would not be contemplated. It is important to note that “place” restrictions generally do not apply to private property (so you can put yard signs in front of your house, even though local rules might limit the size of those signs as a matter of public safety). Some public places (ie parks, courthouse squares, etc.) have traditionally been considered “public forums” and so the government has little ability to limit speech in those places, though they can require permits as a way of avoiding conflicts over their use and to ensure that public officials (ie extra police) are prepared for the events. Other places owned by the government (ie jails, military bases, schools) are considered restrictive environments, and your freedom of speech in those places is somewhat more curtailed.
• Students in public schools still have their freedom of speech, but the government can punish speech that “materially and substantially interferes with the requirements of appropriate discipline” in the conduct of the school. (Tinker v. Des Moines)
• There are several “content-based” categories of speech that receive little or no protection under the First Amendment:
Incitements to Violence: The government can punish people for speech that expressly advocates an immediate violation of
the law when that violation is likely to occur.
Fighting Words: These are traditionally defined as words that, by their very utterance, tend to inflict injury or incite an
immediate breach of the peace. The idea is similar to incitement to violence but also dissimilar, for in this case the speaker is not encouraging violence per se. Instead, insulting language would lead an average listener no choice but to react violently. Though the Supreme Court has not explicitly abandoned this idea, it is rather old-fashioned. Today it is hard to imagine any verbal insults so severe that a normal, mature person would reasonably react with violence.
Hate Speech: In recent decades some have been pushing for laws restricting racist, sexist, and other discriminatory
expressions. These laws have not fared well in court, especially if they try to create protected classes of people (ie punishing racist speech directed against minorities but not racist speech directed against the majority). In 2003, however, the Supreme Court upheld a state law the prohibited cross-burning (a demonstration made infamous by the Ku Klux Klan) for the purpose of intimidating anyone. In effect, it appears that “hate speech” can be punished when it rises to the level of intimidating others.
Seditious Speech: Sedition is the crime of attempting to violently overthrow the government, and seditious speech is speech
that encourages sedition. While history contains many examples of the government punishing people for seditious speech, today the assumption is that you would only be punished if the speech fell under the “incitement to violence” category. Merely opposing government or calling for a revolution in a vague sense cannot be punished.
Obscenity: The government can punish speech as obscene if an average person, applying contemporary community
standards, finds that the speech plainly depicts specifically defined content that would excite sexual interest. The speech must also lack any scientific, literary, political, or artistic value.
False Statements: Perjury, lying under oath in a government proceeding, is a crime. Libel and slander (false statements o
fact that cause harm) are not crimes, but torts. This means that people can sue you for the harm you cause by lying (for example, causing emotional distress or loss of a job). The difference between the two is that slander is spoken, while libel is produced in a permanent form (ie written). Government officials cannot sue for slander when people make impersonal attacks on government policy. Public figures (celebrities and government officials) cannot sue unless they can prove that the speaker knew the statement was false (or acted in reckless disregard for its truthfulness) and spoke intentionally trying to inflict harm. Basically, being subject to gossip and rumor is part of the price of being famous.
Commercial Speech: Historically, advertisements were often subject to sweeping regulation, but those restrictions are
growing fewer. For example, some states formerly forbade attorneys and drug-makers from advertising but can no longer do so. You still cannot make false claims in advertisements or advertise illegal activities. Governments have been able to limit commercial speech through private agreements, however, that do not violate the first amendment because they are voluntary. For example, the Federal Communications Commission (FCC) can regulate broadcasters’ (television and radio, excluding satellite and cable) content because those broadcasters must secure a federal license to operate. Likewise, a massive state-led lawsuit against tobacco companies was settled in part with a promise by the companies to change their advertising practices.
• The freedom of speech also includes the freedom to not speak. This means that the government cannot require you to express opinions against your will. Examples of prohibited laws include mandatory pledges of allegiance at the start of school, requiring periodicals to allow equal access to all political parties, and requiring parade organizers to include floats they do not want.
• Because freedom of speech covers written words and broadcasts, there does not seem to be much left for freedom of the press. Courts have rejected arguments that reporters have a constitutional right to shield their sources or to trespass in order to gather news. About the only significant press freedom left is freedom from targeted taxation. Basically, allowing a state to tax newspapers specifically could result in the destruction of all newspapers. The press can still be subject to a general sales tax or general tax on paper, however.
• The freedom of assembly is the right to gather in groups. Historically, this was quite important because it was the easiest way to disseminate information to large groups of people (not all of whom could read) and because the British tried to prohibit mass gatherings during the colonial period. The freedom of assembly does not give you the right to disturb the peace, trespass on private property, or block other people from accessing public or private property. A very few states do actually guarantee a right to assemble on private property if those properties have been opened for public use (ie a shopping mall).
• The freedom to assemble is treated somewhat like the freedom of speech (after all, assembling is sort of like expressive conduct). The government may impose reasonable time, place, and manner restrictions on assemblies. The government may use permits as a way of controlling access to public places, but cannot discriminate between groups in granting permits (ie grant permits to the veterans’ club but deny a permit to the KKK). The permitting fees also cannot be so high as to discourage assemblies.
• The freedom to assemble also includes the freedom of association. In effect, the government’s interest in discouraging discrimination in private associations cannot always triumph over personal choice. In order to be protected, the discrimination must be connected to the central message or purpose of the organization.
• The freedom to petition the government for “redress of grievances” arose from the fact that, historically, British kings occasionally punished citizens for criticizing the government or asking the government to change policies. We cannot be punished for doing either today, but that right is basically protected under the freedom of speech.