Interpreting & Extending the BOR

Interpreting & Extending the Bill of Rights

I. 1st Amendment

A. Freedom of Expression

Speech is protected unless it creates a clear and present danger of harm or illegal activity, and it is likely that the speech will cause such action (Schenck v. US, 1919).

    1. Prior Restraint: stopping an action before it actually occurs.
             a. NY Times v. US (1971)
                 1. The govt. tried to stop the NY Times from publishing information about the Vietnam War
                 2. The govt. claimed that the information was obtained illegally and that it threatened national security.
                 3. The newspaper said that the public had a right to know and that it had the right to inform them
                 4. The Supreme Court ruled in favor of the newspaper and said that the government cannot use prior restraint
                     unless it can prove that immediate and direct harm will be caused by the speech.

    2. Symbolic Speech - nonverbal expression; protected by courts; includes clothing, gestures, and movements.
            a. Tinker v. Des Moines School District (1969)
                1. Two students decided to protest the Vietnam War by wearing black armbands to school. The principal warned
                    that they would be suspended if they did, but they wore them anyway and were suspended.
                2. The students sued, claiming that their right to freedom of speech had been violated.
                3. The Court ruled in favor of the students, stating that…
                    a. Free speech is permitted in school as long as it does not disrupt learning
                    b. If speech does interfere with school activities, the school can restrict the speech

3. Texas v. Johnson (1989)
a. The Court ruled that burning an American flag as part of a peaceful protest was protected by the 1st Amend.

B. Freedom of Religion
    1. The 1st Amendment has two clauses regarding religious freedom. They are.…
        a. The Establishment Clause
        b. The Free Exercise Clause

    2. The Establishment Clause (The Separation of Church & State)
        a. this clause states that "Congress shall make no law respecting an establishment of religion"
        b. Thomas Jefferson: there should be a "wall of separation between church and state" to prevent persecution
        c. 9 of the original 13 colonies had official religions and religious intolerance was common
        d. This clause means that govt. cannot…
            1. set up a church
            2. aid 1 or any religion
            3. influence a person to go to or stay away from church
            4. tax to support religious activity
            5. punish or reward religious faith or lack of faith
        e. Recent Establishment Clause Issues
            1. Prayer in School
            2. School Vouchers
            3. Teaching of Evolution

3. The Free Exercise Clause
a. The government protects all religious beliefs, but actions must "follow otherwise valid laws."

Return to C/E Daily Assignment Page