A Short & Happy Guide to the First Amendment
Authors:
Power, Robert C. / Alexander, Mark C.
Edition:
1st
Copyright Date:
2016
13 chapters
have results for "first amendment"
Chapter 2: Categorical Exceptions to First Amendment Protections 28 results (showing 5 best matches)
- Obscenity is the third traditional exclusion from First Amendment protection. Obscenity has a technical legal meaning far more limited than pornography, even though the terms are often used interchangeably in common English usage. Most pornography is probably protected by the First Amendment. Child pornography, on the other hand, is clearly excluded from First Amendment protection.
- Most casebooks start with incitement, and much of modern First Amendment law developed from early cases addressing this category. These cases originated the most significant First Amendment speech doctrine, the clear and present danger test, and the dominant speech metaphor, “shouting fire in a theater.”
- Commercial Speech holds an uncertain place in First Amendment doctrine. It doesn’t really belong in this chapter, but it doesn’t really belong in any other either. It ends up here primarily because commercial speech was thought to be an exception at one time, and because it provides a good introduction to the Supreme Court’s uncertain approaches to speech that is not given full First Amendment protection.
- states the general principle for incitement. Advocacy of violence or lawbreaking is unpleasant or worse, but unless the language is likely to cause harm very soon, the First Amendment protects it. More importantly for First Amendment analysis generally, the “shouting fire” metaphor, the restated clear and present danger test, and the marketplace principle were solidified as part of a more general collection of First Amendment principles, and now pop up in areas removed from incitement.
- Thus, fraud and speech integral to criminal conduct are not really categorical exclusions from the First Amendment, but rather are examples of speech that may be used against the speaker, just like a confession to a police officer (remember the Miranda Warning: “anything you say can be used against you”). This may also explain the place of true threats in First Amendment law. The words alone do not constitute a crime and are not a categorical exception to the First Amendment protection. The
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Chapter 1: Introduction 25 results (showing 5 best matches)
- One final way for us to consider the First Amendment for our discussion is as a shield against the government. In this sense, we place the First Amendment in the context of the Bill of Rights, as an overarching protector of a sphere of privacy for the individual. In this context, whether religion or speech, the First Amendment protects the individual’s most private and personal thoughts and beliefs, and the expression thereof. By prohibiting the government from regulating individual speech, the First Amendment provides a protective shield around the individual to think and express herself without fear of censorship or retribution. This sphere of protection is essential to the individual’s growth and participation in our society.
- A third way to look at the importance of the First Amendment is that it helps develop individual autonomy, fosters self-fulfillment, and enhances individual liberty. Seen this way, the First Amendment is all about helping the individual become the best possible person. It is the flip side of the first two ideas, but with a focus on the individual’s growth, as opposed to a greater dialogue for all people, or broad self-governance. It is completely connected with those perspectives, as the marketplace of ideas does not function without strong-minded individuals, nor can we self-govern without a debate among engaged active participants. But still, we may look at the First Amendment as playing an essential role in the development of the
- Having established that the First Amendment is not absolute, so the government regulate speech, there are still some expressive activities that enjoy lesser, or even no First Amendment protection. That’s the concept of categorization. Case law has developed such that certain categories of expressive activity are not considered to be protected expression under the First Amendment. The important result that follows is that expressive activities in these categories are
- The First Amendment is in many ways a defining feature of our government. Coming after the Constitution itself creates the structure of government, the Amendments in large part spell out individual rights. The First Amendment protects the freedom of religion, speech and press, and the right to assemble and petition the Government. It transforms the Great Document from simply being about the government, to being about the people and their freedoms.
- A. The Meaning of the First Amendment—Speech
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Chapter 5: Political Speech and Association 21 results (showing 5 best matches)
- This chapter explores questions of political speech and association, and that will raise competing theories of the meaning of the First Amendment. In terms of political activity, we see First Amendment issues in the form of actual speech, as well as in terms of the regulations of political campaigns, fundraising and spending.
- Because the First Amendment fosters the process of open discussion, that empowers the people to speak freely and to safely vent ideas, frustrations, and anger. In doing so without government interference, the broader debate is enriched, and ideas are tested. In cases like , we see the First Amendment allowing and protecting dissident speech, so as to allow the people to debate and decide the pressing issues of our society. (See Chapter 2.) The remedy for alienation and discontent is not less, but more free expression of ideas; in this way, the First Amendment acts as a safety valve for our system. Unrestrained expression not only allows ideas to be put out there, but for the proponents to let their own emotion show, much like a steam valve allows for the escape of pressure so as to prevent a buildup that causes an explosion.
- First, the Court struck down the specific provision of BCRA, not just as-applied, but on its face as well. Next, the heart of the majority’s argument is as follows: (1) money and political spending can be equated with protected speech; (2) corporations can be considered as natural persons with First Amendment speech rights; and therefore (3) BCRA’s restriction on corporate spending improperly violates the First Amendment. Justice Kennedy wrote: “[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
- opinion may be described as a triumph of the First Amendment over government attempts to regulate core protected political speech. As Justice Kennedy framed the majority opinion, the Court’s concern was our nation’s commitment to vigorous unrestrained debate on all matters pertaining to our politics and government. There can be no doubt that the Constitution places a premium on free expression and the First Amendment. While the Court appropriately celebrated the First Amendment, it did not adequately address the importance of equality concerns in our democracy. There is a tension here: one constitutional value gets promoted over another. In this context, free speech interests effectively trump equality interests. These are the ongoing debates in this field.
- that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to speakers even though they could have received (but chose to spurn) the same financial assistance.” Speaking to the theory we have been considering, Justice Kagan added, “The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate…. Nothing in Arizona’s anti-corruption statute violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the ‘opportunity for free political discussion to the end that government may be responsive to the will of the people.’ ”
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Chapter 6: The Internet and New Media 10 results (showing 5 best matches)
- These dislocations of new electronic technology have not had a lot of effect on First Amendment law. Instead, they have provided new and vexing settings for old First Amendment law. This chapter addresses four areas where this has taken place: 1) sexually explicit material, 2) threats, or statements perceived to be threatening, 3) defamatory content, and 4) violent content.
- is probably most significant for the Court’s unwillingness to add violent imagery to the list of exclusions from First Amendment protection. But it also provided an opportunity for the Court to consider the impact of new technology on the First Amendment. As with the other areas discussed above, the
- Perhaps the most likely target for revised First Amendment analysis is sexually explicit content. The internet is the world’s largest adult video store; rather, it is all of them at once. It is not hard to access pornography on the internet (just go see the Broadway musical , if you want puppets to sing an explanation)—generally all a person has to do in order to enter a pornographic website is affirm that he or she is at least 18. Obscenity and child pornography may be banned from internet sites because they are excluded from First Amendment protection generally and may be barred everywhere (see chapter 2). But this does not prevent young persons from viewing highly objectionable material just a touch “cleaner” than obscene.
- • Speech (and other expression) over the internet is fully protected by the First Amendment.
- Therefore, the First Amendment limitations on defamation addressed in chapter 2 apply without substantial difference in cases involving defamation published on the internet
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Chapter 10: Final Words 8 results (showing 5 best matches)
- Some people, however, question the practical importance of studying the First Amendment. One of Bob’s colleagues says “Real lawyers do Secured Transactions, not the First Amendment.” While many lawyers secured transactions, we are glad to focus here. The worst day in First Amendment law presents more interesting questions than the best day in some boring code specialties. Yes, that’s our opinion, but we bet you will (or already do) agree!
- get up in the morning and head to work with energy and a real sense of purpose to handle First Amendment issues. There are some obvious jobs like that: in-house attorneys for media companies and artistic organizations, staff attorneys at the American Civil Liberties Union, legal counsel for organized religions, etc. All these lawyers have a steady diet of the First Amendment in their work. But that is just the start. Thousands of lawyers who work in public law offices consider First Amendment ...laws that restrict speech, and lawyers draft and defend those laws. Anyone who works as a town solicitor knows how often speech or religion problems arise in representing municipal governments. School districts, police departments, and zoning boards keep them hopping with matters such as speech or dress codes, choice of commencement speakers, parade permits, and special use permits. Many, perhaps most, federal and state attorneys come across First Amendment issues in a wide variety of cases...
- We don’t present some grand unified theory that answers all questions, because … there isn’t one. Instead, there are a variety of reasons for the several rights found in the First Amendment, and you don’t have to do mental gymnastics in order to see how they apply in most cases. Probably the shortest statement of what the First Amendment is all about is this:
- We hope you’ve enjoyed this overview of the First Amendment.
- We’re biased, but we believe the First Amendment may be the most interesting subject in the law school curriculum. Even if you find the legal problems difficult, or if you’re not a Con Law junkie like us, you can’t beat the stories or the scenery. The cases are just one long collection of heroes and rogues bent on testing the policies discussed in chapter 1—the marketplace of ideas, self-governance, autonomy and the like. The experiences of those persons in the Supreme Court draw the lines between government power and personal liberty as well as you can find anywhere. They also illustrate changes over time. Anti-war speeches that sometimes resulted in long prison sentences a hundred years ago now pass largely unnoticed. The First Amendment is interpreted more expansively today than at any time in our history, and that is probably true for each component part, from the religion clauses to the petition clause.
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Chapter 7: Freedom of the Press and Other Enhanced Protections 15 results (showing 5 best matches)
- This chapter addresses three areas in which expression sometimes seems to get extra protection under the First Amendment. The first is the press, which is explicitly included in the protections of the First Amendment. The next is prior restraints, where the government faces extra burdens in challenging speech. Finally, the chapter examines the problem of compelled speech, where government tries to force someone to speak in some fashion. that shows a central theme of this chapter. The First Amendment is very important to the press, but this is less due to the “free press” clause and more due to the fact that much “free speech” law concerns problems faced largely by the press.
- One area in which the First Amendment
- Most First Amendment controversies focus on people who decide to say something. The text is not that limited, however, referring to the freedom “of” speech, a phrase that logically encompasses . (Note that this connects with concepts of the shield of the First Amendment, and the development of the individual that is also promoted by the Amendment.)
- • There are state and federal statutory protections for the press that expand on First Amendment rights.
- • Freedom of the press was a major reason for the First Amendment, yet current theory provides that the press has no special rights from the Press clause. Why?
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Chapter 4: Government in Special Roles 20 results (showing 5 best matches)
- Until the middle of the 20th century, no one gave a lot of thought to the constitutional rights of young persons. Then, in what is still the leading public education First Amendment case, the Supreme Court held that students have First Amendment rights while at school.
- One preliminary question is whether the First Amendment even applies to such passive speech restrictions. . This fact would support nearly automatic First Amendment approval of a government power to consider speech in making spending decisions. Some justices take this view, at least some of the time. Still, presumably the “coercion” analysis of federal spending powers applies here. For example, if the government were to offer a very substantial sum to a couple of law professors to withdraw their First Amendment book, it might constitute an offer they couldn’t refuse, in the
- —regulating and taxing the public for the common good. But governments also employ millions of people and own vast tracts of property. Do they act subject to the strict limitations of the First Amendment when they fill such roles? The answer, unsurprisingly, is . Government acts subject to the First Amendment at some level simply because
- • Public employees who speak in a private capacity on matters of public concern receive First Amendment protections.
- • Forum analysis: Public forums (standard First Amendment rules); Non-public forums (general reasonableness).
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Title Page 1 result
Table of Contents 3 results
Chapter 3: How Government Restricts Speech 20 results (showing 5 best matches)
- The core concept behind First Amendment protection against the government shutting down unpopular ideas or points of view is neutrality, and that also serves key First Amendment goals. In numerous cases, the Court has maintained its Strict Scrutiny of subject matter restrictions, because if the government can target particular subjects, it can distort the marketplace of ideas just as much as the suppression of particular viewpoints. So, for example, if there is an unpopular war, a restriction on discussing the
- (Warren). The case involved a man who had been convicted for burning his draft card, as part of a symbolic protest against the Vietnam War. He undeniably violated a federal law which prohibited the knowing destruction or mutilation of draft cards. Many had seen this law as a way to curb Vietnam War protests. O’Brien saw this law, and his conviction, as an inappropriate restriction on his expressive rights, protected by the First Amendment. The Court addressed the central issue of how to sort out conduct and speech, when they are intertwined, writing: “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limits on First Amendment freedoms.” In other words, sometimes regulating
- • the incidental restriction on First Amendment freedom is no greater than essential to furtherance of interest.
- may be limiting expressive activity, protected by the First Amendment. In this context, the government cannot ban flag burning, even though—and maybe particularly because—it is highly expressive and emotional
- The Court more recently ruled on content-based vs. content-neutral restrictions on First Amendment activity in its 2010 decision in ...knowingly providing any material support or resources to foreign terrorist organizations. Congress’ definition of “material support or resources” included examples such as currency, training, and expert advice or assistance. Two U.S. citizens and six domestic organizations challenged the law, because they wanted to provide money, legal training, and political advocacy to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) in order to support their humanitarian and political purposes. PKK and LTTE were both designated as foreign terrorist organizations because of evidence that they committed numerous terrorist attacks and have harmed American citizens. The Court thus considered whether the material support statute violates the plaintiffs’ First Amendment rights to freedom of speech and association because it does...
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Chapter 8: Free Exercise 4 results
- If your First Amendment class is like most, the religion clauses get second billing and are relegated to the end of the semester. In . One reason for studying the religion clauses is that they reflect that dual structure. The First Amendment prohibits government from establishing religion while
- ...state the basic guarantee of the Free Exercise Clause fairly simply: Government may not interfere with any individual’s personal decisions about religion, such as whether to believe in a religion and how to pray. This is clear from the text of the Free Exercise clause, from the history of religion in the United States, and from many Supreme Court precedents over more than 100 years. The Court has often relied on colonial history to tell an oversimplified story along the following lines. Many of the colonies were formed by religious dissenters who objected to limitations on religious freedom in Europe. They saw America as a place where they could worship God as they chose. Different colonies were settled by different groups, and over time, some fell back into a pattern in which government prescribed religious practices. That was unacceptable to the majority of the people, who wrote guarantees of religious freedom into several state constitutions, and then into the First Amendment...
- for law students, the determination of the appropriate category to apply is sometimes confusing. This is partly because the doctrines in the area are still developing, and partly because laws have changed some of those First Amendment doctrines, essentially outranking federal constitutional law (how does
- might appear to allow such laws, but there are non-First Amendment constitutional protections of bodily autonomy that allow people to reject unwanted medical treatment (remember that Fourteenth Amendment discussion from Con Law?). Thus, such laws probably fall within
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Chapter 9: Establishment Clause 2 results
- Trying to answer questions about how to define religion or the relationship between the First Amendment’s religion clauses is like walking a tightrope. But we will (borrowing from the literature on business management) recast this challenge as an opportunity. It’s hard to be wrong when the questions are so amorphous.
- The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass
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- Publication Date: April 8th, 2016
- ISBN: 9781634602587
- Subject: First Amendment
- Series: Short & Happy Guides
- Type: Overviews
- Description: This concise guide breaks down a complicated topic—the First Amendment—and makes it understandable and fun. The book walks briskly through cases, rules, and theories to draw a reader-friendly road map of the First Amendment. Two law school deans and First Amendment enthusiasts, Bob Power and Mark Alexander, synthesize principles with memorable examples and a sharp wit. Their analysis reveals the common sense behind much First Amendment law, and at the same time identifies some of its flaws and inconsistencies. The book addresses the deep historic roots as well as current problems such as campaign finance, hate speech, and electronic communications. It is equally useful as a general guide as it is for preparing for class and for exams (including the bar!).