Today we are looking at the Bill of Rights and the reason behind its creation.
Today we are looking at the Bill of Rights and the reason behind its creation (1:00). Starting with the first amendment, we consider both the establishment clause and free exercise clause with regard to religion (1:57). We then turn to freedom of speech in both its pure and symbolic forms (4:31). Finally, we will look at what kind of speech isn’t protected (6:08).
Today’s question of the day is (8:15): What 1988 SCOTUS case said student speech could be regulated when it involved things that were school sponsored?
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Hi and welcome to the APsolute Recap: US Gov Edition. Today’s episode will recap The Bill of Rights and the First Amendment
Lets Zoom out:
Unit 3 - Civil Liberties and Civil Rights
Topics 3.1-3.4
Big idea - Liberty and Order
In previous episodes we looked at the compromises between the Federalists and the Anti-Federalists. One of these compromises was the first ten amendments to the Constitution known as the Bill of Rights. The first of these amendments deals with the “free exercise clauses” which seeks to balance individual freedom with larger societal issues.
Lets Zoom in:
The Anti-Federalists demanded that individual rights and liberties needed to specifically be spelled out in the Constitution. These protections are the amendments that make up the Bill of Rights. These amendments guarantee protections with regard to opinion and property against random government involvement in our lives. These rights are constantly being interpreted by the courts as new situations present themselves. The Bill of Rights provides protections for the following: speech, religion, assembly, press, guns, searches of property, rights of the accused, and those reserved for the people and the states. OK, you buffs out there might have noticed that I didn’t mention quartering soldiers, but that one was very time specific. When was the last time a member of the US army rang your doorbell and kicked you out of your house for the night?
In this episode we are going to look at the First Amendment’s free exercise clause as it relates to religion, speech, and the press. Let’s look at religion first. The free exercise clause allows individuals to practice their faith without government interference. Furthermore, the establishment clause says that Congress cannot make a law that establishes a national religion. Religion is an individual choice - it cannot be forced and must be respected. It is fairly well known that public schools are not allowed to have school sponsored prayer. This was decided with the 1961 case Engel v. Vitale. The case focused on the school starting the day with an optional non-denominational prayer. The court ruled that states cannot hold prayers, even when they are optional and not in support of any specific religion.
The following decade, another landmark case regarding religion was decided in 1971 with Wisconsin v. Yoder. In the case, three parents who were part of the Amish community, were prosecuted for refusing to send their children to high school in violation of the state law that students must attend school until the age of 16. The parents argued that sending the children to school beyond the 8th grade went against their religious beliefs. The Supreme Court sided with them, stating in the majority opinion that attending high school was "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that there wasn’t enough benefit in attending two more years of school to justify forcing the Amish parents to send their children.
With regard to freedom of speech, the first amendment protects different types of speech: pure speech (what comes out of your mouth) and symbolic speech (protest and other symbolic actions). A democracy depends on freedom of thought and expression, and the courts take this idea seriously. That said, we will look at examples of speech that are also not protected. Let’s start with the case that symbolic speech is protected. It is also the same case that gives freedom of speech and expression to high school students. In 1965 a group of students decided to wear black armbands to school in protest of the Vietnam war. In anticipation, the school passed a rule that students wearing armbands would be asked to remove them and refusal would result in suspension. A lawsuit was filed and the case eventually made its way to the Supreme Court in 1969. The Court ruled in favor of the students, saying the armbands represented pure speech and that students didn’t lose their first amendment rights when they entered the school doors. This case established the Tinker Test which states that a school cannot censor a student out of discomfort, there must be a “substantial interruption of school discipline and operation.” It is important to note that this freedom of speech does not extend to publications or activities sponsored by the school, which can be regulated. However, the courts have also established the idea that there is also a need to weigh social order against these individual freedoms.
Not all speech is protected. There can be time, place, and manor regulations, such as not being able to call fire in a crowded theater. Speech that is considered obscene or defamatory is not protected. Defining what is obscene is difficult, not only because it can change over time, but also because it is based on what is considered offensive to the “average person,” thus leaving it open to even further interpretation. Another form of speech that is not protected is speech that is defamatory in nature. Defamation is making a false and malicious statement that is damaging to a person’s reputation. Critical statements about public figures is protected speech so long as it is knowingly not false, the exception being satire for the sake of comedy and entertainment.
Finally, speech is also not protected if it poses a clear and present danger. This was decided in the case Schenck v United States. The case set the standard that freedom of speech could be limited if it poses a clear and present danger. And while that idea is still upheld, most agree that Schenck is bad law. The case involved a man named Charles Schenck handing out pamphlets about resisting the draft in WWI. He was arrested and convicted for impeding the war effort. Today this wouldn’t be considered a clear and present danger, but was in the political and global climate at the time. Similar problems arose in the 1950s and 60s with the fear of communism. The problem is determining when does freedom of speech pose a real danger to the government as opposed to bad timing or a disruption?
To recap……
The first ten amendments to the Constitution are the Bill of Rights. The first amendment is designed to protect an individual’s freedom of expression and maintain that right while trying to balance law and order. The first amendment protects religion, and speech, but not in the cases of obscenity or defamation.
Coming up next on the Apsolute RecAP US Government Edition: The Second Amendment
Today’s Question of the day is about student speech
Question: What 1988 SCOTUS case said student speech could be regulated when it involved things that were school sponsored?